Mohd. Khaja Moinuddin vs Moosa Bin Mohd
2023 Latest Caselaw 4103 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

           Civil Revision Petition No.6565 OF 2018

ORDER:

Aggrieved by the Judgment dated 06.09.2018 in

R.A.No.55 of 2017 on the file of learned Additional Chief Judge,

City Small Causes Court at Hyderabad confirming the eviction

order dated 18.03.2017 passed in R.C.No.177 of 2014 by the

learned III Additional Rent Controller at Hyderabad, the tenant

filed the present Civil Revision Petition.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the learned III Additional

Rent Controller at Hyderabad.

3. The brief facts of the case are that the landlord has let out

his house bearing No.18-08-534/12/A/16 admeasuring 100

square yards, ground floor, Edibazar to the tenant in the year

2010 on a monthly rent of Rs.4,000/- exclusive of electricity

and water charges without any security deposit. However, in

the suit filed by the tenant in O.S.No.1933 of 2013 for perpetual

injunction not to dispossess him from the subject property

without due process of law, the learned VIII Junior Civil Judge,

City Civil Court, Hyderabad fixed the rent @ Rs.2,000/-. Even

then the tenant is not paying rent of Rs.2,000/- from the month 2 MGP,J Crp_6565_2018

of November, 2013 to August, 2014. Since the landlord is not

having any residential house in twin cities except the subject

property, he requested the tenant to vacate the property but the

tenant is postponing to vacate the same.

4. To the said petition, the tenant filed counter denying the

averments of the petition and mainly contended that since

March, 2014 the landlord refused to collect the rents, as such,

the tenant is tendering the rents through money orders, which

were also refused by the landlord.

5. During the course of enquiry, the landlord examined

himself as PW1 and got marked Exs.P1 to P4 and on behalf of

the tenant, RWs 1 and 2 were examined and Exs.R1 to R10

were marked. After considering the rival contentions, the

learned III Additional Rent Controller at Hyderabad allowed the

petition by directing the tenant to vacate the subject property

within three months from the date of the order. Aggrieved by

the same, the tenant has preferred R.A.No.55 of 2017 and the

said appeal was dismissed vide Judgment dated 06.09.2018 by

the learned Additional Chief Judge, City Small Causes Court,

Hyderabad. Aggrieved by the Judgment dated 06.09.2018

passed by the appellate Court, the tenant has preferred the

present Civil Revision Petition.

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6. Heard both sides and perused the record.

7. The main contention of the learned counsel for the tenant

is that the Appellate Court failed to appreciate the clear

admission of landlord (PW1) that the rent is Rs.2,000/- per

month and there is no default on part of the tenant and that the

tenant is regularly depositing the rent. It is further contended

that the landlord refused the money orders as the rent is not

proper. Learned counsel for the tenant relied upon a decision in

Vinukonda Venkata Raman v. Mootha Venkateshwara Rao

and another 1, wherein the High Court for the erstwhile State of

Andhra Pradesh held that if the entire arrears of rent are paid

prior to filing eviction petition, the eviction does not sustain.

The learned counsel for the tenant further relied upon a

decision in J. Narahari Chari v. B.R. Jain and others 2,

wherein it was held that even by date of first appearance, if

tenant remits entire rent and there were no arrears as on that

day, the order of eviction is not maintainable.

8. In the case on hand there is no material to show that the

tenant has paid entire arrears of rent as on the date of filing the

eviction petition. If at all the landlord is refusing to receive the

rents paid by the tenant, what was the necessity for the

2001 (6) ALD 27 (FB)

2004 (4) ALD 502 4 MGP,J Crp_6565_2018

landlord to initiate proceedings before the learned Tribunal is

unexplained. If at all the landlord is refusing to receive the

rents, it is the bounden duty of the tenant to issue notice to the

landlord asking him to furnish the bank account particulars

enabling him to deposit the monthly rents in the said account.

The tenant failed to initiate any steps in compliance of Section 8

of the Act seeking permission to deposit the rents in the account

of the landlord. Since the tenant failed to come forward to remit

the rents or deposit the rents in accordance with law, the

landlord was constrained to approach the learned Tribunal to

file eviction petition. As can be seen from the record, the

learned Tribunal has rightly restricted the default period from

November, 2013 to February, 2014 as the landlord as PW1

admitted in his cross examination that the tenant has

committed default in payment of monthly rents from November,

2013 to February, 2014. It is on the application of the landlord,

as per the orders dated 04.02.2015 in I.A.No.345 of 2014 in

R.C.No.177 of 2014 the tenant has been depositing the monthly

rents into the Court to the credit of the said RC.

9. Though the tenant has relied upon Exs.R1 to R10 to

substantiate that he has paid monthly rents to the landlord, the

tenant failed to establish that those money orders pertains to 5 MGP,J Crp_6565_2018

the default period i.e., November, 2013 to August, 2014. Except

stating that the landlord is not accepting the rents, no other

reason was assigned by the tenant as to why the landlord is not

accepting the rents. It is pertinent to note that in a suit filed by

the tenant seeking injunction in respect of the petition schedule

property, the monthly rent @ Rs.2,000/- was fixed by the

learned VIII Junior Civil Judge, City Civil Court, Hyderabad vide

judgment dated 03.06.2014. Since the tenant has not been

depositing rents as fixed by the learned VIII Junior Civil Judge,

City Civil Court, Hyderabad, the landlord was constrained to

approach the Rent Controller for reddressal of his grievance.

10. The other contention of the learned counsel for the tenant

is that the landlord failed to establish the bona fide requirement

and thereby relied upon a decision in Ram Dass v. Iswar

Chander 3, wherein the Apex Court held that the need of the

landlord should be genuine and honest. Though RWs 1 and 2

contended that PW1/landlord has other alternative residential

house at A.C.Guards to reside, no documentary evidence is

adduced to that extent or at least the tenant could not even

produce the house number or the flat number of the alleged

alternative residential house in which the landlord is residing.

Civil Appeal No.2969 of 1984 decided on 09.05.1988 6 MGP,J Crp_6565_2018

In the absence of any cogent and convincing evidence, mere

assertion that the landlord has alternative residential house in

the twin cities cannot be construed as true and genuine.

Hence, the contention of the learned counsel for the tenant that

landlord failed to establish the bona fide requirement is

unsustainable.

11. It is further contention of the tenant that in case of

seeking eviction on the ground of personal bona fide

requirement and on senior citizen without considering that the

petitioner is also a senior citizen. No doubt the tenant is also a

senior citizen, however, it is pertinent to note the landlord is

seven years elder to the tenant and thereby priority shall be

given to the party, who is senior in age.

12. The other contention of the learned counsel for the tenant

is that on the request of landlord the tenant has paid a hand

loan of Rs. 5,00,000/- to the landlord on 03.03.2013 and when

the tenant has asked for repayment of said hand loan amount,

the landlord has filed the eviction petition before the learned

Tribunal as a counter blast. It is pertinent to note that it is the

tenant, who has initially filed O.S.No.1933 of 2013 before the

learned VIII Junior Civil Judge, City Civil Court, Hyderabad in

the year 2013 and whereas the landlord has filed the eviction 7 MGP,J Crp_6565_2018

petition before the learned Tribunal on 04.08.2014 and only

thereafter, the tenant has filed O.S.No.191 of 2015 before the

learned XVII Senior Civil Judge for recovery of hand loan

amount. Thus, it is very clear that it is the tenant, who has

initiated legal proceedings against the landlord with ulterior

motive. Hence, it cannot be said at any stretch of imagination

that the landlord as a counterblast to the demand made by the

tenant for recovery of money, has filed the eviction petition

before the learned Tribunal. The tenant as RW1 deposed in his

chief-examination that landlord as a counter blast deputed

unsocial elements to harass him and his family members

compelling him not to demand any loan amount from him. In

such circumstances, the tenant ought to have filed suit for

recovery of money in the year 2013 itself instead of filing

O.S.No.1933 of 2013 seeking injunction. When the dispute

between the parties with regard to demand of hand loan arose

in the year 2013 itself, what made the tenant to file suit for

recovery of money in the year 2015 is unexplained.

13. As rightly pointed by the learned Appellate Court, the

tenant is taking inconsistent pleas at various stages. For

instance, in O.S.No.1933 of 2013 the tenant claimed that he

has purchased the subject property but the said plea has not 8 MGP,J Crp_6565_2018

been raised in any further proceedings between the parties. On

one hand, the tenant claims that the landlord has borrowed

hand loan from him by executing promissory note dated

03.03.2013 and on the other hand, he claims that the landlord

has agreed to sell the subject property on 03.03.2013 for a total

sale consideration of Rs.12,00,000/- and out of said

consideration Rs.5,00,000/- was paid as earnest money as

collateral security. Hence, there is no clarity from the tenant as

to whether Rs.5,00,000/- was received by the landlord as hand

loan or earnest money for sale of petition schedule property.

Thus, the conduct of the tenant in taking inconsistent pleas

certainly raises a suspicion with regard to his bona fides.

14. The landlord could establish all the grounds based on

which he filed the eviction petition against his tenant and on the

other hand the tenant failed to establish that he has not

committed default in payment of rents.

15. The learned counsel for the landlord relied upon a

decision in Addissery Raghavan v. Cheruvalath

Krishnadasan 4, the Apex Court held that to satisfy itself to the

regularity, correctness, legality or propriety of the impugned

decision or the order, it cannot exercise its power as an

4 (2020) 6 Supreme Court Cases 275 9 MGP,J Crp_6565_2018

appellate power to re-appreciate or reassess the evidence for

coming to a different finding on facts. In the case on hand also

the Rent Controller has passed the orders for eviction of the

tenant from the subject property on merits and the Appellate

Court has confirmed the said eviction orders and at this

juncture, this Court cannot re-appreciate or re-assess the

evidence to satisfy as to the regularity, correctness, legality or

propriety of the impugned decision or the order. The tenant

failed to establish any error apparent on the face of the record

in the impugned order. As stated supra, the scope and ambit of

this Court under Section 22 of A.P. Building (Lease, Rent and

Eviction) Control Act in interfering with the orders passed by the

learned Tribunal and Appellate Court is very limited.

16. In view of the above discussion, this Court is of the

considered view that there is no infirmity or error apparent on

the face of record in the impugned order, more particularly,

when the scope of revision under Article 227 of the Constitution

of India to interfere with the findings of the trial Court is very

limited to a supervisory role and can certainly not be the resort

to correct every erroneous order. As seen from the grounds of

revision, the revision petitioner failed to bring out any of the

grounds showing that there is an error apparent on the face of 10 MGP,J Crp_6565_2018

the record to set aside the impugned order. Therefore, there are

no merits in the Civil Revision Petition and thereby it is liable to

be dismissed.

17. Accordingly, the Civil Revision Petition is dismissed. In

order to save the tenant from abrupt eviction, this Court grants

him time upto 18.02.2024 for vacating the premises, subject to

his filing an undertaking on affidavit before the Rent Controller

within four weeks from today, incorporating the following terms

and strictly complying therewith:-

(i) That on or before 18.02.2024, 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

18.02.2024 shall be deposited in advance within a

period of four weeks from today.

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18. 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.

Pending Miscellaneous applications, if any, shall stand

closed.

_______________________________ JUSTICE M.G.PRIYADARSINI Date: 18.11.2023 AS