Telangana High Court
Rasheed Ahmed Junaid vs Mohd. Vazir , Ateeq on 15 February, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
CIVIL REVISION PETITION Nos.1842, 2362 & 2440 of
2019
COMMON ORDER:
The parties in all these three Civil Revision Petitions are one and the same, and the issue involved in all these three matters is interlinked with each other, therefore, these Civil Revision Petitions are being disposed of by way of this Common Order.
02. The Civil Revision Petition No.1842 of 2019 is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (for short 'the Act') preferred by the Appellant-Tenant against the Judgment and Decree dated 12.06.2019 passed in R.C.A.No.18 of 2018 by the learned Chief Judge, City Small Causes Court at Hyderabad (for short 'the Appellate Court') wherein and whereby the Order and Decree dated 22.12.2017 in R.C.No.250 of 2011 passed by the learned III Additional Rent Controller, City Small Causes Court, Hyderabad, (for short 'the Rent Controller') and the order for eviction of the tenant from the schedule premises, was confirmed.
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03. The Civil Revision Petition No.2362 of 2019 is filed under Section 22 of the Act, preferred by the Appellant-Tenant against the Order dated 12.06.2019 passed in I.A.No.38 of 2019 in R.C.A.No.18 of 2018 by the learned Appellate Court wherein the receive documents petition filed under Order 41 Rule 27 of the Code of Civil Procedure (for short 'CPC') read with Section 20 (3) of the Act, was dismissed.
04. The Civil Revision Petition No.2440 of 2019 is filed under Section 22 of the Act, preferred by the Appellant-Tenant against the Order dated 12.06.2019 passed in I.A.No.125 of 2019 in R.C.A.No.18 of 2018 by the learned Appellate Court wherein the receive documents petition filed under Order 41 Rule 27 of the CPC read with Section 20 (3) of the Act, was dismissed.
05. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Rent Controller.
06. The facts of the case, in brief, are as follows:
The petitioner is the co-owner and landlord of the schedule premises i.e., mulgi No.5-3-844/1, admeasuring 3 358 Sq.feet., Ground floor, situated at Malakunta Road, Goshamahal, Hyderabad and respondent is the tenant of the schedule premises.
07. According to the petitioner-landlord, there is lease deed dated 15.04.2010 between petitioner and respondent. Rent payable is Rs.1,860/- per month. Respondent is doing business of Sanitary goods and water meters in the schedule premises. Respondent paid rent for the month of May, 2010 on 06.07.2010 and failed to pay rent from the month of June, 2010 to May, 2011 for 12 months amounting to Rs.22,320/- inspite of repeated demands by petitioner. Respondent issued a cheque dated 23.11.2010 towards rent for the month of June, 2010 to September, 2010 but the same was dishonoured.
08. It is further the case of the petitioner that as per clause-6 of lease deed dated 15.04.2010 the tenant shall pay municipal property tax and handover the receipts to the landlord but the respondent intentionally violated the terms of lease deed and committed default in payment of property tax and monthly rents. Hence, petitioner sought for eviction of respondent-tenant. 4
09. Respondent-tenant filed counter contending that one Mr.H.M.Vazeer was the owner of the schedule premises and the father of respondent Mohd.Yahiya obtained schedule premises on monthly rent in the year 1953 and since then running business in the name and style of "M/s.Fazal Water Meter and Sanitary Works". After death of said H.M.Vazeer, his three sons became joint owners and the said tenancy has been attorned and father of respondent became their tenant and paid rent regularly. In the year 1983, after partition, one M.A.Ghani became owner of the schedule premises and tenancy has been attorned and father of respondent became their tenant and paid rent regularly. The father of respondent died in the year 2008 leaving behind four daughters and three sons as his legal heirs. As such, the business of Mohd.Yahiya has become joint business of all his legal heirs and they become joint tenants and are running business in the schedule property. As such it is necessary to implead all the legal heirs of Mohd.Yahiya as parties to the petition but the petitioner did not made them as parties. They are regularly paying rents. Since the inception of tenancy, the 5 landlord used to pay the property tax. On 03.05.2010 petitioner collected rents for the months of July, 2009 to March, 2010. On 06.07.2010 respondent paid rent for the month of April and May, 2010 and petitioner issued single receipt to that effect. Respondent issued cheque dated 23.11.2010 towards payment of rent for June, 2010 to January, 2011. Petitioner informed respondent that the said cheque was misplaced. On 02.12.2010 respondent paid an amount of Rs.14,880/- towards rent from June to January, 2011 but the cheque was not returned by petitioner. On 11.04.2011 respondent paid rent for the months February, 2011 to March, 2011 and April, 2011 to August, 2011 in advance and issued receipt. Further, respondent admitted clause-6 of the lease deed and that respondent paid an amount of Rs.656/- towards property tax in respect of schedule premises for the year 2010-2011. Thereafter, respondent received demand bill for the year 2013-2014 for Rs.33,656/- without any notice for such enhancement from GHMC. Respondent submitted a letter dated 30.03.2014 enclosing a cheque of Rs.1,968/- as per 6 earlier tax. Hence, respondent sought for dismissal of the petition.
10. To prove the case of petitioner-owner, PW1 was examined and Ex.P1 was marked. On behalf of respondent-tenant, tenant himself was examined as RW1 and got marked Exs.R1 to R29.
11. The learned Rent Controller, after conducting full-fledged trial, allowed the R.C. against which, the tenant preferred an Appeal before the learned Chief Judge, City Small Causes Court, Hyderabad in R.C.A.No.18 of 2018 which has been dismissed by confirming the findings of the learned Rent Controller and ordered for eviction of the tenant. Aggrieved by the same, the Civil Revision Petition No.1842 of 2019 is filed by the tenant.
12. Heard both sides. Perused the record.
13. Now the point for consideration is:
Whether the concurrent findings given by learned Rent Controller as well as learned Appellate Authority for eviction of respondent, are liable to be set aside?7
P O I N T:
14. It is contended by learned counsel for the revision petitioner-tenant that the tenant has been paying rents for occupation of schedule premises regularly since from the date of inception i.e., from the year 1953 and that the father of respondent died in the year 2008 leaving behind four daughters and three sons as his legal heirs and as such, the business of Mohd.Yahiya has become joint business of all his legal heirs and they become joint tenants and are running business in the schedule property and that the petitioner-owner failed to implead all the legal heirs of Mohd.Yahiya as parties to RC. They are regularly paying rents without any default. As cash in hand is not available, tenant issued cheque dated 23.11.2010 towards payment of rent for June, 2010 to January, 2011, which was misplaced by owner. Thereafter, on 02.12.2010 respondent paid an amount of Rs.14,880/- towards rent from June to January, 2011 but the cheque was not returned by owner. On 11.04.2011 respondent paid rent for the months February, 2011 to March, 2011 and April, 2011 to August, 2011 in advance and issued receipt. As 8 per clause-6 of the lease deed the tenant paid an amount of Rs.656/- towards property tax in respect of schedule premises for the year 2010-2011. Without any notice, the GHMC enhanced property tax and a demand bill for the year 2013-2014 for Rs.33,656/- was received by tenant, for which tenant submitted a letter dated 30.03.2014 enclosing a cheque of Rs.1,968/- as per earlier tax.
15. It is further submitted by the learned counsel for the revision petitioner-tenant that the tenant filed I.A.No.38 of 2019 and I.A.No.125 of 2019 in R.C.A.No.18 of 2018 before the learned Appellate Court, which is the subject matter of Civil Revision Petition Nos.2362 of 2019 and 2440 of 2019 respectively, and sought for receiving of documents i.e., copy of Order dated 25.01.2019 issued by GHMC in File No.171/C-3/TC14/GHMC/2019, office copy of W.P.No.44080 of 2018, copy of order dated 01.02.2019 passed by this Court and letter addressed to the Registrar (Judicial) of this Court and property tax payment receipt dated 06.03.2019 and that said additional evidence was not considered by the learned Appellate Court and dismissed both the applications. It is further contended 9 that the learned Rent Controller and learned Appellate Court failed to consider the fact that annual tax for mulgi was Rs.656/- per annum which was enhanced to Rs.9656/- per annum without any notice by GHMC and that learned Appellate Court did not take on record the additional documents filed by tenant in I.A.No.38 of 2019 and I.A.No.125 of 2019 and passed the impugned Judgment. Hence, the Order of the learned Rent Controller as well as the Judgment of the learned Appellate Court suffers from illegalities and irregularities and prayed this Court to allow this Civil Revision Petition by setting aside the concurrent findings.
16. Per contra, the learned counsel for respondent- owner contended that the learned Rent Controller on considering the arguments of the both sides and after considering the oral and documentary evidence available on record, rightly allowed the R.C., and the learned Appellate Court, also being first Appellate Court analyzed all the aspects and dismissed the appeal by confirming the findings of the learned Rent Controller and ordered for eviction of the tenant. Therefore, the learned counsel for 10 respondent-landlord contends that as the findings of the lower appellate authority are on appreciation of the evidence in proper perspective, the same needs no interference by this Court and prayed for dismissal of the revision.
17. As seen from the record, the jural relationship of landlord and tenant between both the parties in respect of the schedule premises is concerned, the father of respondent Mohd.Yahiya obtained the schedule premises in the year 1953; there is lease/rental agreement dated 15.04.2010 and clause-6 of the said rental agreement, the tenant has to pay the property tax pertaining to the schedule premises; prior to 15.04.2010 the property taxes were being paid by owner, thus all the above aspects are undisputed facts.
18. It is the specific contention of the learned counsel for the tenant that one Mr.H.M.Vazeer was the owner of the schedule premises and the father of respondent Mohd.Yahiya obtained schedule premises on monthly rent in the year 1953 and since then running business in the name and style of "M/s.Fazal Water Meter 11 and Sanitary Works". After death of said H.M.Vazeer, his three sons became joint owners and the said tenancy has been attorned and father of respondent became their tenant and paid rent regularly. In the year 1983, after partition, one M.A.Ghani became owner of the schedule premises and the father of respondent became their tenant. The father of respondent died in the year 2008 leaving behind four daughters and three sons as his legal heirs. The business of Mohd.Yahiya has become joint business of all his legal heirs and they become joint tenants and are running business in the schedule property, therefore, it is necessary to implead all the legal heirs of Mohd.Yahiya as parties to the petition but the owner did not made them as parties to the RC and that the main RC is liable to be dismissed on the sole ground of non-joinder of the necessary parties.
19. The definition of 'landlord' under Section 2 (vi) of the Act, "landlord‟ means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another person or on behalf of himself and others 12 or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent; if the building were let a tenant. The definition of 'tenant' defined under Section 2 (ix) of the Act, "tenant‟ means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority.
20. In the present case on hand, the petitioner- owner is shown co-owner and landlord of the schedule premises and the said fact is not disputed by the tenant. Admittedly, the petitioner-owner collected rents and tenant paid rents to petitioner-owner till they fell default. 13 Therefore, in view of above definitions, a person who is entitled to receive the rent for a building whether on his own account or on behalf of himself or on behalf of third party is a landlord and any person by whom or on whose account rent is payable for a building is tenant.
21. It is the case of the owner that the tenant has committed willful default in payment of rents for the months of June, 2010 to May, 2011 amounting to Rs.22,320/- and that the tenant has not paid property tax as agreed under rental agreement and the tenant is liable to be evicted from the schedule premises. Whereas, it is the case of the tenant that the owner used to collect rents in respect of schedule premises for once in three or four months and that on 02.12.2010 the tenant paid Rs.14,880/- towards rent from June, 2010 to January, 2011 and that on 11.04.2011 and that the owner collected monthly rents for the months of February, 2011 to March, 2011 and April, 2011 to August, 2011 in advance and issued receipts for the same. On this aspect, the learned Rent Controller on evaluating the oral and documentary evidence available on record, had came to conclusion that 14 there is no default in payment of rents by tenant. The said aspect was not contested by the owner in the appeal before the learned Appellate Court or in this revision before this Court. But the appeal was contested only on the allegation of willful default in payment of property taxes to the Greater Hyderabad Municipal Corporation. So also, in this Civil Revision Petition.
22. PW1 stated that he obtained Ex.P1 property tax due details from internet in respect of the schedule premises and came to know that the tenant is in arrears of property tax from 01.04.2011 to 31.03.2014 amounting to Rs.39,030/- along with interest levied by GHMC for non- payment of property tax. Lease deed/rental agreement dated 15.04.2010 there is an obligation on the tenant to pay the municipal taxes under clause-6. RW1 admitted that as per clause-6 of the said lease deed the liability of payment of property taxes was imposed upon the tenant and the tenant paid property tax for the year 2010-2011.
23. The tenant filed two I.A.Nos.38 of 2019 and 125 of 2019 for receiving some documents under Order 41 Rule 27 of CPC as additional evidence and the same were 15 dismissed by the learned Appellate Court, which are subject matters of C.R.P.No.2440 and 2362 of 2019 before this Court. The documents are the copy of Order dated 25.01.2019 issued by GHMC in File No.171/C- 3/TC14/GHMC/2019 reducing the tax from Rs.9,656/- per annum to Rs.4,802/- per annum w.e.f. 01.04.2015, subjection to withdrawal of W.P.No.44080 of 2018, which was filed challenging the enhanced property tax without any notice and sought for receiving of the above documents along with copy of withdrawal order dated 01.02.2019 passed by this Court and letter addressed to the Registrar (Judicial) of this Court, and to show that he paid property tax, he filed property tax payment receipt dated 06.03.2019.
24. It is apparent on the face of record that additional evidence documents filed by the tenant are subsequent to the filing of RC and during the pendency of the appeal. Even if the above documents are taken on record as additional evidence, they are of no help to the case of the tenant to substantiate that he has not 16 committed any willful default in payment of property tax from 2011 to 2014 and thereafter.
25. In Hindustan Petroleum Corporation Limited., v. Dilbahar Singh 1 the Honourable Supreme Court of India held that:
"45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, 1 Civil Appeal Nos.6177 of 2004 and batch decided by the Honourable Supreme Court on 27.08.2014 17 correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re- appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
26. In the above authority, it is made clear the consideration or examination of the evidence by the High Court in revisional jurisdiction under the Act is confined to find out that finding of facts recorded by the Rent Controller/Appellate Authority is according to law and does not suffer from any error of law. If finding of fact recorded by Courts below is perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law, in that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set 18 aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts.
27. In view of the above discussion and having regard to the settled principle of law, this Court is of the considered opinion that there are no illegalities or irregularities in the concurrent findings given by the learned Rent Controller as well as learned Appellate Authority and this Civil Revision Petitions are liable to be dismissed as devoid of merits.
28. In the result, all the three Civil Revision Petitions are dismissed. However, in order to save the tenant from abrupt eviction, this Court grants time upto 15.04.2024 for vacating the premises, subject to his filing an undertaking on affidavit before the learned Rent 19 Controller within four weeks from today, incorporating the following terms and strictly complying therewith:
(i) That on or before 15.04.2024, the tenant shall deliver vacant and peaceful possession to the landlord and shall not induct anyone else in possession or create any third-party interest in the tenancy premises;
(ii) That the statement of the deposits made by the tenant with all the relevant particulars, so as to satisfy the Rent Controller and the landlord that all the arrears have been cleared upto date, shall be filed within four weeks from today; and
(iii) The amount equivalent to the rent calculated upto 15.04.2024 shall be deposited in advance within a period of four weeks from today.
Failing compliance with any of the above terms, the decree for eviction shall be available for eviction of the revision petitioner-tenant forthwith. There shall be no order as to costs.
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As a sequel, pending miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI Dated: 15-FEB-2024 KHRM