M/S. Sri Sai Syndicate vs The Hyderabad Cut Piece Cloth ...
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        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

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

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.

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.

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.

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?

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

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

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

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

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.

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

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

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

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,

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

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.

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

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

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.

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

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