THE HONOURABLE SRI JUSTICE M.LAXMAN
CIVIL REVISION PETITION Nos.3414 & 4224 OF 2015
COMMON ORDER:
1. Since the issue involved in both the revisions is one
and the same, they are being disposed of by way of this
common order.
2. Vide judgment dated 21.04.2015 in R.A.No.10 of 2011,
the Court of the Chief Judge, City Small Causes Court at
Hyderabad (for short, lower appellate Court), dismissed the
appeal filed by the tenant confirming the order dated
28.10.2010 in R.C.No.453 of 2007 on the file of the Court of
the II Additional Rent Controller, Hyderabad (for short, trial
Court), accepting the finding of the trial Court 'change of
user' for eviction, but rejected the ground of 'subletting'.
3. C.R.P.No.3414 of 2015 is filed by the tenant and
C.R.P.No.4224 of 2015 is filed by the landlord. During the
pendency of C.R.P.No.3414 of 2015, the tenant died and his
legal heirs were brought on record as petitioner Nos.2 to 4.
4. The landlord filed R.C.No.453 of 2007 seeking eviction
of the tenant pleading that he is the owner of flats bearing
Nos.16 and 17, admeasuring 780 sft., in first floor,
consisting of drawing/dining room, bed room with attached
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toilet, kitchen, common balcony, in Krishna Apartments,
bearing Municipal No.4-1-930, New Marketing Complex,
Tilak Road, Abids, Hyderabad (hereinafter, it is referred to as
'petition schedule property'). He purchased the petition
schedule property along with flat Nos.14 and 15 in Court
auction vide certificate of sale dated 13.03.1990. The
respondent is his tenant and he has been paying monthly
rent of Rs.600/- through cheques since November, 1990. The rent which was being paid by the tenant is very low compared with the prevailing rent for adjacent and surrounding premises. The petition schedule property was let out for residential purpose, but the tenant had converted portion (one room) of the petition schedule property into non-residential purpose, which is shown in green colour in the plan, without the consent of the landlord and sublet the same to Mr. Prasanth Mehta, who was carrying business in the name and style 'P.C.S. Securities Limited', as branch office. As such, the tenant violated the tenancy conditions. Thus, the landlord sought for eviction of the tenant from the petition schedule property.
5. The pleadings of the tenant are that he is the tenant much prior to the landlord purchased the petition schedule 3 ML,J Crp_3414 & 4224_2015 property in auction. He has been using the petition schedule property for the purpose for which the petition schedule property was let out to him by the previous owner and he did not change the use of the petition schedule property. It is the case of the tenant that the room which is shown in green colour is the office room being used by the tenant and his family members for computer purposes. He denied the averment of subletting the petition schedule property to M.Prasanth Mehta. It is the further case of the tenant that the landlord, having unsuccessful in his earlier rent control case to evict the tenant, has filed the present eviction petition with oblique motive. On the above grounds, the tenant sought to dismiss the case.
6. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the respondent changed the premises other than for which it was leased out?
2. Whether the respondent had subletted the portion of the petition schedule premises to one Prasanth Mehta without the knowledge and consent of the petitioner?"
7. The landlord, to support its case, examined P.Ws.1 and 2 and relied upon Exs.P-1 to P-6. The tenant, to support his case, examined R.W.1, but he has not relied upon any document.
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8. The trial Court, after appreciating the evidence on record, found that the landlord has established the change of user and sub-letting the premises and allowed the eviction petition. Challenging the same, the tenant has preferred an appeal in R.A.No.10 of 2011 and the lower appellate Court, on re-appreciation of the evidence on record, found that the landlord made out the case of change of user of the premises. Accordingly, it confirmed the findings of the trial Court; however, it reversed the finding of the trial Court on the aspect of subletting and held that the landlord has not established existence of sub-tenancy. Challenging the dismissal of appeal, the tenant filed CRP.No.3414 of 2015 and challenging the reversal of finding of the trial Court on the aspect of subletting, the landlord filed CRP.No.4224 of 2015.
9. Heard both sides.
10. The contention of the learned counsel for the tenant is that both the Courts below have not properly appreciated the evidence on record in ordering eviction of the tenant from the petition schedule property. It is his contention that the landlord has failed to place any convincing evidence with regard to change of user. According to him, there is no 5 ML,J Crp_3414 & 4224_2015 change of user of the building and part of the building which is used for operating the computer for family needs was misconstrued as a commercial office. Such assumption by both the Courts below is not in accordance with the pleadings and evidence of the landlord. It is also his contention that the evidence of P.W.2 clearly demonstrates that he is not the witness to the factum of running the commercial activity by the tenant or his son. According to the evidence of P.W.2, he had purchased the shares from P.C.S. Securities Limited which is run by Prasanth Mehta, who is the son of tenant. In fact, the landlord has filed the eviction petition in the year 1997. If really such business was run by the son of the tenant, the landlord should have taken change of user in the previous rent control case filed by him. This circumstance demonstrates lack of credibility of the statement of the witness.
11. It is also the contention of the learned counsel for the tenant that change of user of the premises must be for the entire premises, and if the part of the premises was changed, it will not hit by the requirement of Section 10(2)(ii)(b) of the Telangana State Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, the Act). 6
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12. It is his further contention that predominant usage of the building has to be taken into consideration, but not incidental activity which gives rise to cause of action for eviction on the ground of change of user. He submitted that use of the building is contradiction to Section 10(2)(ii)(a) of the Act, whereunder the words 'building' as well as 'part of the building' were used. Therefore, even if there is a change of use of part of the premises, it will not fit into the requirement of the statute. Therefore, on this ground also, the findings of both the Courts below require to be set aside.
13. It is also the contention of the learned counsel for the tenant that the photographs are not duly proved and the photographer was not examined. Therefore, those photographs cannot be foundation to hold that the business is being run in the petition schedule property. He further submitted that inadmissible evidence was relied upon by the Courts below in holding that there is change of user, and hence, on this ground alone, the findings of the Courts below require to be reversed.
14. Conversely, the learned counsel for the landlord has contended that no counter-pleadings were filed by the tenant, but his son, on the strength of GPA, filed counter- 7
ML,J Crp_3414 & 4224_2015 pleadings, without placing such GPA on record. Therefore, the entire pleadings have to be thrown out and the petition requires to be allowed in toto even without any evidence, since there are no proper pleadings from the tenant.
15. Learned counsel for the landlord has further contended that the tenant has not entered into witness box to prove his case and he is the best person to speak about the matter in dispute. The witness, who entered into witness box, deposed basing on the alleged General Power of Attorney (GPA) which in fact was not produced. If the GPA is produced, his evidence with regard to the facts within his knowledge can be brought on record. The evidence of the GPA holder must be confined to the facts relating to execution of GPA, but not more than that. When a party to the proceedings abstains from entering the witness box, an adverse inference can be drawn with regard to the case set up by him.
16. It is also contended that both the Courts below have concurrently found that there is a change of user and such concurrent findings are based on evidence on record. Such evidence cannot be reversed. In revision, the scope is very limited and no ground is made out to reverse the concurrent 8 ML,J Crp_3414 & 4224_2015 findings. It is further contended that the evidence on record demonstrates that there is no commonness since R.W.1 himself admitted in previous rent control case that he and his father were living separately.
17. According to the learned counsel for the landlord, the evidence on record shows that Prasanth Mehta, who was running the P.C.S. Securities Limited in part of the petition schedule property, had a separate flat near Hanuman Tekdi. Further, flat Nos.19 and 20 which are abutting to the petition schedule property are owned by the younger son of the tenant along with his family. R.W.1 is also not staying in the petition schedule property as admitted by him in the previous proceedings. Therefore, the only inference that can be drawn is that the activity done by Prasanth Mehta, is commercial in nature in the name and style of P.C.S. Securities Limited. Once, it is established that P.C.S. Securities Limited is being run in the said premises, naturally and consequently, it has to be assumed and inferred that part of the premises was let out to Prasanth Mehta and this was not properly appreciated by the lower appellate Court while reversing the finding of the trial Court with regard to subletting. According to him, the lower 9 ML,J Crp_3414 & 4224_2015 appellate Court has not properly considered the business activity of P.C.S. Securities Limited in the part of petition schedule property. Therefore, such finding of lower appellate Court requires to be reversed on this ground also, as such, the Civil Revision Petition of the landlord for eviction is required to be allowed.
18. On the basis of the above said facts and contentions, the following points emerge for consideration before this Court:
"1. Whether the landlord proved the change of user of the petition schedule property?
2. Whether the landlord proved sub-tenancy in between the tenant and Prasanth Mehta?"
Point No.1:-
19. In this regard, to decide the points which have emerged for consideration, it is apt to refer to Section 10(2)
(ii) (a) and (b) of the Act and also definition of 'Building' which is defined under Section 2 (iii) of the Act, which read as under:
"Section 10: Eviction of tenants:- (1)....
(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-10
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(i)....
(ii) that the tenant has, in the Andhra Area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad House Rent Controller Order of 1353 Fasli, without the written consent of the landlord-
(a) transferred his right under the lease or sub-let, the entire building or any portion thereof if the lease does not confer on him any right to do so; or
(b) used the building for a purpose other than that for which it was leased; or
(iii)...
Section 2: Definitions:- In this Act, unless the context otherwise requires-
(i) & (ii) ...
(iii) 'Building' means house or hut or part of a house or hut, let or to be let separately for residential or non- residential purposes and includes:-
(a) the gardens, grounds, garages and out-houses if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut;
(b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house;"
20. A comparative reading of Section 10 (2) (ii) (a) and (b) of the Act shows that in case of transfer of right under lease or sub-let by the tenant in respect of entire building or any portion thereof, he cannot exercise such a right without the written consent of the landlord. The definition of building under Section 2 (iii) of the Act clearly shows that it includes any house, hut or part of a house or part of the hut or let or to be let separately for residential or non-residential 11 ML,J Crp_3414 & 4224_2015 purposes. Violation of lease conditions may be relating to transfer of any right in respect of lease or any sub-letting, either entire building or part of building. Change of user relating to building includes part or total building when read with the definition of building.
21. The case of the landlord is that one room of petition schedule property was being used for non-residential purpose and he says that Prasanth Mehta was running branch office of P.C.S. Securities Limited in it. Therefore, such an act of Prasanth Mehta, though he is son of tenant, constitutes change of user.
22. The landlord has relied upon photographs with negatives under Exs.P-3 to P-5, which demonstrate that P.C.S. Securities Limited sign board was erected to the balcony of petition schedule property. In addition to the own evidence, he has also adduced evidence of P.W.2, who is an Advocate, who claims to be running office in the abutting premises which is owned by his mother. The evidence of P.W.2 shows that he claims to have purchased the shares of the P.C.S. Securities Limited in the year 1995. 12
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23. The evidence on record also shows that the landlord filed a rent control case earlier in the year 1997, wherein he did not plead about the change of user of property. If, really the business is being run from 1995, the landlord would have mentioned the same in his earlier rent control case about the change of user. This is one of the circumstances, which makes P.W.2 as wholly unreliable witness.
24. The evidence P.W.2 shows that his mother is owner of property abutting to petition schedule property. This is not disputed by tenants and he also claimed that he was running his advocate office in the said premises and residing in Basheerbagh area. The tenant denied that he was running an office in the said premises. There is no other evidence except as claimed by P.W.2. Since there is no dispute with regard to the ownership of mother of P.W.2 in respect of abutting flat, it can be said that P.W.2 had some acquaintance with nature of things done in the petition schedule property. Therefore, though he is not wholly reliable witness, his evidence cannot be thrown out as unreliable and his evidence requires some corroboration to establish the factum of running of business, so as to amount to change of user.
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25. The evidence on record further shows that Prasanth Mehta owned property in Hanuman Tekdi. Similarly, the evidence on record under Ex.B-6 shows that R.W.1 admitted that he was not staying with his father. The evidence also shows that flat Nos.19 and 20 which are abutting to the petition schedule property owned by younger son of tenant and the property stands in his name. It is not case of R.W.1 that he was staying with his younger brother.
26. The pleadings also show that in one of the rooms, an office was established, which according to R.W.1 was established to operate computers by family members of the tenants. This contention has to be decided in the light of other evidence on record, whether that office was meant for family for their use or for running business as claimed by the landlord.
27. The evidence on record clearly probablizes that R.W.1 was not staying with the tenant. Similarly, Prasanth Mehta was also not staying with his father. The evidence is also lacking to show that younger son of the tenant is also staying with the tenant. This evidence clearly rules out that office set up in the part of petition schedule property was meant for usage of computer by the family of the tenant. 14
ML,J Crp_3414 & 4224_2015 This evidence clearly probablizes that there was business activity in the petition schedule property in the name and style of P.C.S. Securities Limited.
28. With regard to the contention of the learned counsel for the tenant that the photographs shall not be taken into consideration as admissible evidence since the photographer was not examined, it may be right that the photographer, who took the photographs and developed them into prints ought to have been examined; however, while marking of such documents, no objection was raised by the tenant. The evidence is lacking to show that landlord was not there when the photographs were taken. When the landlord was witness to the photographs, he can be said to be witness to the fact of photographs. The photographs also can be proved through landlord, who was witness to the fact of taking photographs. Therefore, entire photographs cannot be thrown out. The evidence clearly probablizes that there is business activity in the part of petition schedule property in the name and style of P.C.S. Securities Limited. Therefore, the findings of both the Courts below though not properly appreciated; ultimately conclusion was based on evidence on record.
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29. Learned counsel for the tenant contended that when a building is given for particular purpose, a small portion of such building was not used for the purpose which the tenancy is created, it may not be a ground to contend that there was change of user. In support of his contention, he relied upon the judgment of the Punjab and Harayana High Court in Shri Bakshish Sing Nalwa vs. Shri Harnam Singh, Property Dealer, Sacha Sauda1. The said judgment was based on the judgment of Apex Court in B.R.Oswal vs. Laxmibai R.Tarta2.
30. The controversy in the said judgment was that a shop was given for business and part of it was used for residential purpose. Therefore, eviction was sought on the ground of change of user. Dealing with the said contention, the Apex Court held that it is dominant purpose for which the premises was let out is the deciding factor. The change of user therein discloses that part of the property was used as residential and part was used for running of business. Ultimately, it was held that the District Court was the final Court of fact and there being no appeal provided agianst the findings of fact reached by the District Court, it was not 1 1993 SCC Online, P&H 93.
2(1975) 1 SCC 858 16 ML,J Crp_3414 & 4224_2015 open to the revisionsal Court to question the propiety or reasonableness of the conclusions drawn from the evidence by the District Court.
31. The facts in the present case are different. In the present case, both the Courts below have given concurrent findings with regard to change of user. If the principle adopted by the Apex Court in the said judgment is applied to the facts in the present case, this Court should not interfere with the findings of facts concurrently arrived by both the Courts below with regard to change of user.
32. The learned counsel for the tenant has relied upon the decision of Apex Court in Gurdial Batra vs. Raj Kumar Jain3 and the decision of Madras High Court in S.Subramaniam vs. G.R. Palanisamy Gounder4.
33. A glance of the facts in the said judgments show that the tenancy was created for one business purpose, but the tenant carried out another business. In the said circumstances, the Apex Court and the Madras High Court held that there was no change of user. Therefore, those judgments are not applicable to the facts of the present case. 3 (1989) 3 SCC 441 4 1995 SCC Online Mad 2 17 ML,J Crp_3414 & 4224_2015
34. From the evidence on record, this Court is not inclined to interfere with the findings of facts arrived by both the Courts below. Therefore, this point is answered against the tenant.
Point No.2:
35. The case of the landlord was that the change of user was on account of running P.C.S. Securities Limited in the portion of the petition schedule property. It is not known whether the subletting is done in favour of Prasanth Mehta or P.C.S. Securities Limited. The landlord also does not claim that P.C.S. Securities Limited is a proprietary concern. If it is not a proprietary concern, it must be an artificial person. Therefore, the evidence must be there to show that the sub-tenancy was created in favour of Prasanth Mehta. But, this evidence is lacking.
36. Now a question arises whether this Court can reject the claim of eviction for lack of evidence to prove the ground of sub-letting. The entire background of the case was that pleadings are not properly filed by the tenant. The tenant is not a signatory to the pleadings. The alleged GPA holder signed and filed the pleadings. However, no such GPA was produced in spite of specific cross examination in that 18 ML,J Crp_3414 & 4224_2015 regard. Further, the tenant has not entered into witness box.
37. In this regard, it is necessary to refer to the decision of the Apex Court in Mohinder Kaur vs. Sant Paul Singh5, which reads as under:
"6. In Janki Vashdeo (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross- examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows:
15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao (AIR 1999 SC 1441) observed that:
17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct...."
38. As seen from the above judgment, it is clear that the GPA Holder can only depose acts relating to his agency, but he cannot depose the acts done by the principal. Further, the agent cannot depose for the principal in respect of matters which the principal alone can have the personal 5 (2019) 9 SCC 358 19 ML,J Crp_3414 & 4224_2015 knowledge in respect of which the principal is entitled to be cross-examined.
39. In the present case, the tenant is the right person to say whether sub-tenancy is created or not and such facts are within the special knowledge of the tenant. Therefore, the tenant must be available for cross-examination. It is to be noted that where a party to the proceedings does not enter into witness box stating his own case on oath and does not offer himself to be cross-examined, a presumption would arise that case set up by such party is not correct, as held by the Apex Court in the supra stated decision.
40. The above principle applies to both the grounds raised by the landlord. On this ground alone, the landlord's petition requires to be allowed. However, both the Courts below have not taken note of this aspect. This point is also answered in favour of the landlord.
41. In the result, CRP.No.4224 of 2015 is allowed and the judgment dated 21.04.2015 in R.A.No.10 of 2011, the Court of the Chief Judge, City Small Causes Court at Hyderabad is set aside to the extent of its findings on sub-letting, and it is confirmed to the extent of eviction on the ground of change 20 ML,J Crp_3414 & 4224_2015 of user. CRP.No.3414 of 2015 is dismissed. Consequently, the order dated 28.10.2010 in R.C.No.453 of 2007 on the file of the Court of the II Additional Rent Controller, Hyderabad, is confirmed. The tenant is granted three months time, from the date of this order, to vacate the petition scheudle property, subject to filing of an undertaking by him before the trial Court, within 15 days from today, to the effect that he will vacate the petition schedule property on the expiry of three months time. If the undertaking is not filed within the stipulated time, the landlord is entitled to take appropriate steps against the tenant for eviction. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
________________ M.LAXMAN, J Date: 19.04.2023 TJMR