Allowed

Sri Damera Venkata Surya Satyanarayana Rao, v. Marneedi Venkataramana (Died) Per L.Rs.

Telangana HC26 Aug 2010CRP/5405/2007

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition to set aside a lower court order dismissing an eviction petition. The Court held the tenant liable for wilful default in rent, unauthorized change of user to a lodge/hotel without written consent, and acts of waste, despite the defendant's efforts to explain the rent delay. The tenant was granted six months to vacate.

What did the court decide?

Set aside impugned judgment and decree; allowed eviction petition without costs; respondents granted six months time to vacate premises.

Sri Damera Venkata Surya Satyanarayana Rao, Vs… — Landlord and Tenant | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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THURSDAY, THE TWENTYSIXTH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5405 of 2007

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Between:

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Damera Venkata Surya Satyanarayana Rao

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..Petitioner

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AND

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Marneedi Venkataramana and 4 others

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.. Respondents

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ORDER:

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The Civil Revision Petition is directed against the judgment and decree in R.C.A.No.4 of 2005 on the file of the Senior Civil Judge, Pithapuram, dated 17-07-2007.

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The revision petitioner filed R.C.C.No.1 of 1999 before the Rent Controller/Junior Civil Judge, Pithapuram, for eviction of the deceased-1^st respondent from the petition schedule premises on the grounds of wilful default in payment of rents from April 1998 to September, 1998, the change of user of the leased premises from business to a Lodge and a Hotel, acts of waste and acts of nuisance. Notices were exchanged prior to the petition and the request for eviction was resisted by the deceased-1^st respondent contending that the dismissal of R.C.C.No.2 of 1993 and

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R.C.A.No.1 of 1999 for the same reliefs operates as res judicata in this petition. The 1^st respondent also contended that the lease for monthly rent of Rs.460/- is true, but the alleged wilful default is incorrect as the rents were being sent by Money Orders regularly to the landlord and as the Money Order sent under receipt No.1251 was returned due to change of address on 9-5-1998. The tenant immediately enquired the kith and kin of the landlord and also addressed the employer of the landlord for the changed address. As he could not ascertain the changed address of the landlord, the tenant opened a Saving Bank Account No.7940 and was depositing the rents therein regularly. Soon after receiving the notice, the rent was sent by demand draft and the tenant also contended that he did not commit any acts of waste or nuisance and did not indulge in any change of user.

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In the enquiry conducted on such rival contentions, the Rent Controller had examined PWs.1 to 5 and RW.1 and marked Exs.A.1 to A.8 and B.1 to B.9.

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The Rent Controller rendered his order on merits on 05-09-2005 and in the said order, after referring to rival contentions and evidence, the Rent Controller came to the conclusion that there was no landlord and tenant relationship between the parties and therefore, without considering the grounds for eviction, the Rent Control Case was dismissed without costs by the Rent Controller.

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In an appeal against the said order, the Appellate Authority rendered the impugned judgment on 17-07-2007 reversing the finding of the Rent Controller about the absence of relationship of tenant and landlord, but again dismissing the appeal without costs concluding that wilful default or acts of waste or prohibited change of user or acts of nuisance were not proved. For the said conclusion, the Appellate Authority relied on the efforts made by

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the tenant to pay the rent, the premises being leased out even originally for the purpose of business/a non-residential purpose and the absence of proof of violation of any rules concerning public health.

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The landlord is before this Court with this revision against the said order contending that the deposit of rents by the tenant in a bank account in his own name could not have been considered as genuine effort to tender the rents, when the tenant never took recourse to the statutory procedure under Section 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short “the Act”) and otherwise, did not take any steps to pay or tender rents as required by law. The use of the premises for a Lodge and Hotel was not shown to be under any licence or permission from the concerned authorities and the admissions of RW.1 in this regard including acts of waste and nuisance and unauthorized alterations of the schedule premises were unjustly ignored by the Appellate Authority. The landlord, therefore, desired the orders of the Rent Controller and the Appellate Authority to be reversed and eviction to be ordered.

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Smt. Manjari S. Ganu, learned counsel for the appellant and Sri M. Bala Subramanyam, learned counsel for respondents 2 to 5 herein, who are impleaded as legal representatives of the deceased 1^st respondent-original tenant, are heard.

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The conclusion of the Appellate Authority in the impugned judgment about the existence of relationship of landlord and tenant between the revision petitioner and the deceased-1^st respondent was not challenged by respondents 2 to 5 and the said conclusion can, therefore, be considered to have become final.

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The point that remains for consideration in this revision is

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whether the respondents are liable to be evicted from the schedule premises on the grounds of wilful default, change of user and acts of waste and nuisance?

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About the ground of wilful default in payment of rents concerning the period from April, 1998 to September, 1998, the deceased-1^st respondent as RW.1 stated in his evidence about his sending rents regularly by Money Orders and the last of such Money Orders under receipt No.1251 being returned to him, on which he enquired the kith and kin of the landlord and also addressed a registered letter to the employer of the landlord to ascertain the changed address of the landlord. He claimed that as there was no response or information, he was forced to deposit the rents regularly into Savings Bank account opened by him in his own name. Similar allegations were made by him in his counter and it is seen from Exs.B.3 to B.8 that the address at which the landlord was attempted to be communicated and paid the rents was the office address of the landlord and not the residential address of the landlord. There was no clarity in the counter or in the chief-examination of RW.1 as to whether an effort was ever made to send the rents to the residential address of the landlord or whether the tenant knew the residential address of the landlord at all. It was admitted by the tenant in his cross-examination that he knew the residential address of the petitioner and that he did not file any petition for deposit of rents from April, 1998 to September, 1998 before the Rent Controller. While the petitioner as PW.1 alleged the default to be wilful and while the non-receipt of rents from April, 1998 to September 1998 by the landlord till the same was sent by demand draft along with the reply notice-ExA.2 is not factually in dispute, the reasons for the inability to pay or tender the rents each month to the landlord from April to September 1998 cannot be considered to be satisfactorily explained by the efforts

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made by the tenant to send the rents to the office address or to know the office address of the landlord, when the tenant knew the residential address of the landlord and never made any attempt to tender or pay the rents at the residence of the landlord or send the rents to the residential address of the landlord. Under such circumstances, the default ought to have been considered to be wilful within the meaning of Section 10 of the Act.

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The landlord specifically pleaded in the petition that the tenant was running a Lodge in the premises changing the user of the property for a purpose other than for which it was leased out without any specific intimation or permission. In the reply noticeEx.A.2, there was no reference to the aspect by the tenant, while even in the counter, it was stated that it was for the petitioner to clarify his averment in this regard and the allegation was not otherwise answered. While the landlord reiterated his plea as PW.1, even in his chief-examination affidavit, RW.1 did not specifically refer to this aspect and in his cross-examination, he admitted that he did not mention earlier that with the permission of late Ranga Rao, the father of PW.1, he altered the use of the property. RW.1 admitted that he did not apply to the Municipality for conversion of the premises into a Lodge, he did not obtain any written permission from Ranga Rao for such conversion, he did not obtain any written permission for running a Coffee or Meals Hotel in the premises and did not remember whether he mentioned in his counter about obtaining such oral permission from Ranga Rao. He also admitted that he made constructions in the property like raising walls and making it into rooms, which were again stated to be with the permission of Ranga Rao, which was admittedly not specified earlier.

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Smt. Manjari S. Ganu, learned counsel, referred to Kaligotla Suryanarayana Murthy and others v. P.V.

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Ramanaia h^[1] , wherein the learned Judge considered the concept of acts of waste to be liable to be judged from the point of view of the landlord and a tenant cannot act and behave as the owner of the property. As such, the perception of the tenant that he made improvements to the property and increased its value is not the relevant factor and it is the perception of the landlord about the changes and alterations that matters in considering whether they should be considered as acts of waste.

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Similar was the decision reported in Mabbu Subbaram Reddi v. T.A.P. Srinivasa Raghva n^[2] , wherein the learned Judge pointed out that the value or utility affected by alterations have to be ascertained from the point of view of landlord and not of tenant. Considerations regarding the acts of waste were stated to be dependent on its own peculiar circumstances of each case. Apart from the preference to be so given to the perceptions of the landlord concerning any acts of waste as a consequence of any constructions or alterations, the learned counsel, Smt. Manjari S. Ganu, also referred to Dashrath Baburao Sangale and others v. Kashimath Bhaskar Dat a^[3] , wherein the Apex Court held that the question of acquiescence of landlord also does not arise in case of any change of user of the leased premises by the tenant against the stipulations in the lease. However, that was a case where there was specific stipulation in the lease against the change of user. Another decision on the same aspect in K. Rachamma v. Bimalal Bai and another^[4] was also relied on wherein the use of building for a purpose other than that for which it was leased was considered sufficient to order eviction. But that was also a case where there was a written lease specifying the purpose for which the property was being leased.

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In the present case, the lease was oral and no specific

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stipulation against change of user was specified to have been agreed upon between the original landlord and the original tenant. Even then, the running of a Lodge and a Hotel in the premises was admittedly not the original purpose for which the premises was let and even assuming that a change of user could have been permitted even orally by the landlord, the use of the building for a purpose other than that for which it was leased could not have been proved by RW.1 to be with the permission of Sri Ranga Rao, the father of PW.1 and the original landlord. While Section 10 (2) (ii) of the Act requires the written consent of the landlord in this regard and an oral permission could not have been of any avail to the tenant, it may be noted that the silence of RW.1 in this regard till his cross-examination and the total absence of any independent corroboration for his claims in his cross-examination by any other evidence make his vacillating and vague claims of such oral permission from Ranga Rao not acceptable and if so, the tenant might have to be evicted even on that ground.

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Concerning the acts of nuisance, the landlord had examined PWs.2 to 4 and filed the photographs through the photographerPW.5 showing the physical features of the premises and the space around. While RW.1 of course denied committing any acts of nuisance, the very location of premises as seen from the photographs marked through PW.5 and the nature of activity in running a Coffee and Meals Hotel may suggest in the ordinary and natural course of human events that the claims of PWs.2 to 4 about the inconvenience being faced may be probable, but no elaborate analysis of the evidence in this regard is required in the light of the conclusions about the wilful default in payment of rents, change of user without written consent and acts of waste.

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On the grounds probablised by the evidence on record, the landlord is, therefore, entitled to have the tenant evicted from the

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premises within the scope of Section 10 of the Act and Sri M. Bala Subrahmanyam, learned counsel for the respondents, submitted that in the event of the Court not agreeing with his contentions, the respondents required reasonable time to vacate the premises in which they were running the business since long time and which is the only source of livelihood of their family. Request for reasonable time is reasonable though may not be to the extent of one year claimed by the learned counsel and notwithstanding the opposition of Smt. Manjari S. Ganu, learned counsel for the landlord, for the grant of any further time in the litigation since more than one decade, it will be just and reasonable to grant six (6) months time to vacate the premises.

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In the result, the judgment and decree in R.C.A.No.4 of 2005 on the file of the Senior Civil Judge/Appellate Authority under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 Pithapuram, dated 17-07-2007 are set aside and consequentially, the order of the Rent Controller, Pithapuram, in R.C.C.No.1 of 1999 dated 05-09-2005 also is set aside and R.C.C.No.1 of 1999 is allowed without costs and the respondents are granted six (6) months time from today to vacate and deliver possession of the petition schedule premises to the petitioner. The Civil Revision Petition is allowed accordingly without costs.

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G. BHAVANI PRASAD, J

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Date: 26-08-2010

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Ksn

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[1] 2002 (4) Andhra Law Times 229

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