M/S Kamakshi Silk House, ... vs Purushotham Das D Mehta, ...
2023 Latest Caselaw 1686 Tel

       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

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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

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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).

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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-

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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

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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

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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-

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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

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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.

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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.

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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

1993 SCC Online, P&H 93.

(1975) 1 SCC 858

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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.

(1989) 3 SCC 441

1995 SCC Online Mad 2

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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

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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

(2019) 9 SCC 358

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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

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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