Remanded

Noor Khan v. G.Sambasiva Rao

Telangana HC26 Aug 2011CRP/1310/2011

Case brief

AI extract

What is this about?

In a civil revision petition challenging eviction orders, the High Court held that while lower courts correctly found no wilful default, the matter must be remanded to the Rent Controller to consider new medical documents proving the petitioner's wife was referred to a distant hospital, rather than dismissing the revision immediately.

What did the court decide?

Orders below set aside; matter remanded to the Rent Controller for fresh consideration of new documents within three months.

Noor Khan Vs G.Sambasiva Rao — Landlord and Tenant | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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C.R.P.No.1310 of 2011

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O R D E R:

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This Civil Revision Petition has been filed challenging the orders passed by the appellate authority under the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 dated 28.02.2011 in R.A.No.241 of 2010. The parties will be referred to as they are arrayed before the Rent Controller for the sake of convenience.

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The petitioner’s specific case is that he is the owner of Quarter No.G-1 allotted by Army Welfare Housing Organisation in Sikh village, Secunderabad in 1986. He is a retired Havaldar. After his retirement, he was appointed as Security Supervisor at Guntur. Therefore, he shifted his family to Guntur and leased out his quarter to the respondent on a monthly rent of Rs.3,000/-. His specific case is that since his wife fell sick in March, 2009 and since then she has been suffering from diabetes, blood pressure and required immediate treatment at Military Hospital, Secunderabad which is very near to his quarter, he requested the respondent to vacate the quarter and issued advance notice in the month of April, 2009. The respondent inspite of receiving the said notice, avoided to vacate the quarter. Though the petitioner has filed a petition under Section 10-A (1) (a) of Rent Control Act, 1960, but he has also pleaded that the respondent committed wilful default. The further case of the petitioner is that as on the date of filing of the petition ie. on 30.08.2009 the total rental amount due from the respondent is Rs.27,000/-. It is also alleged that the respondent is not paying the water tax, conversion tax and electricity bills.

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The respondent filed a counter, inter alia contended that the petition filed by the petitioner under Section 10-A of the Act is not maintainable in law as well as on facts. It is denied that the petitioner had sent one month advance notice in the month of April, 2009 asking him to vacate the premises. It is also denied that he is not paying the water tax, conservation tax and electricity bills. His further case is that he is unaware of the health condition of the petitioner’s wife. His further case is that all the Ex-Serviceman have been provided with health cards which makes them eligible for medical treatment in Super Speciality Hospitals i.e, in the referral hospitals situated at various places. It is also alleged that the petitioner is having own house at Guntur and he can avail medical facilities to his wife in Super Speciality Hospitals i.e., Aswini Hospital, Guntur and Lalita Super Speciality Hospital, Guntur which are referral hospitals. It is his further case that he has been regularly paying rents and that he has not committed any default and that the rents have been deposited in the bank account of the petitioner.

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The learned Rent Controller framed the points for consideration.

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On behalf of the petitioner, the petitioner himself was examined as PW.1 and another witness was examined as PW.2 and Exs.A.1 to A.10 were marked. On behalf of the respondent, he himself was examined as R.W.1 and got marked Exs.R.1 and R.2.

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The learned Rent Controller held that the petition was not filed within the period of one year from the date of commencement of the Act or within the period of one year from the date of retirement of the petitioner and therefore the petitioner cannot invoke Section 10-A of the Amended Act of 17/05 and the same is not maintainable. The learned Rent Controller also observed that the petitioner himself admitted that the

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rents have been paid into his bank account. The learned Rent Controller further held that under Section 10-A of the Amended Act, the petitioner cannot seek eviction on the ground of wilful default. It is also observed that the referral hospitals are available at Guntur and in the above circumstances, the petitioner is not entitled to evict the respondent from the petition schedule premises and accordingly dismissed the petition. Aggrieved by the same, the petitioner filed Rent Appeal. The appellate Court on re-appreciation of entire evidence came to the conclusion that the petitioner failed to prove that the respondent committed any wilful default of payment of rents and on the issue of bonafide requirement, the appellate Court held that the petitioner has secured the job under a quota of Ex-service man at Guntur and that number of Hospitals are available at Guntur and that the petitioner can avail medical treatment to him and his family members under the health card issued to the Ex-service man and that the petitioner has not produced any positive evidence in support of his contention that the required treatment to his wife is available only at Secunderabad Military hospital and holding so, dismissed the appeal. Challenging the same, this revision has been filed.

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The main contention of the learned counsel for the petitioner Sri K.K.Chakravarthy is that the Courts below have failed to consider that the petitioner’s wife has been suffering from ill-health and that the doctors have referred her to the Military Hospital, Secunderabad and this fact was not taken into consideration by the Courts below. It is also submitted that even on the issue of wilful default, the evidence was not properly appreciated and both the Courts erred in holding that the respondent has not committed wilful default. It is also his submission that certain medical prescriptions, which the petitioner has now secured could not be filed before the Rent Controller, and the subsequent developments that is the

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treatment provided to the wife of the petitioner and the endorsement of the doctors referring her to the Military Hospital, Secunderabad could not be filed before the Courts below. It is also his submission that the petitioner has no other residential house at Secunderabad and he cannot stay in hotels at Secunderabad for providing treatment to his wife.

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Relying on the judgment of the Apex Court in Harshavardhan Chokkani v Bhupendra N.Patel and others^[1] , it is submitted that the powers of the High Court under Section 22 are wider than power under Section 115 of the C.P.C. It is also submitted that when the Courts below have committed error in appreciation of evidence, the same can be corrected. He has relied on the decision reported in Bhupendra N.Patel v Harshavardhan Chokkan i^[2] in support of his contention. It is also his submission that even at the stage of revision, in certain circumstances, additional evidence may be received and in support of his contention, relied on the judgment in Vinukonda Venkata Ramana v Mootha Venkateswara Rao and anothe r^[3] .

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The learned counsel for the tenant Sri M.V.Raj Kumar Gabriel, submitted that the tenant has not committed any default in payment of rents. He has taken me through the evidence and also the documents filed by the tenant and the bank pass book marked as Ex.R.1. His submission is that the contents of R.1 go to show that the tenant has been regularly paying the rents through the cheques to the petitioner and he is regularly withdrawing the same and the same is evidenced from Ex.R.1. His second submission is that Ex.R.2 gives the list of referral hospitals and it is clear that the petitioner being an Ex-Serviceman with the health card issued to him can provide treatment to his wife in the referral hospitals at Guntur, and therefore, there is no bona fide

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requirement in this case. It is also his submission that even on the earlier occasion, if there were some delayed payments once the arrears have been paid by the tenant and accepted by the landlord, the landlord cannot complain that there is wilful default. In support of his contention, he has relied Vinukonda Venkata Ramana and others v Mootha Venkateswara Rao and others^[4] . It is also submitted that the petitioner has invoked Section 10-A, but he cannot seek the eviction on the other grounds available under Section 10 of the Act. It is also his submission that there is no satisfactory evidence on record to show the nature of the disease of the wife of the petitioner or the treatment provided to her. It is finally submitted that since Super Speciality Hospitals are available at Guntur the petitioner does not require the petition schedule premises bonafidely.

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The point that arises for consideration is whether the findings of the Courts below are perversed and whether the additional evidence now produced before this Court can be taken into consideration?

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As far as the wilful default is concerned, the evidence on record proves that the tenant had been regularly paying the rents through the bank account and that the petitioner has been withdrawing the same. In the light of the judgment of the Full Court of this Court in Vinukonda Venkata Ramana and others v Mootha Venkateswara Rao and others (four supra) and the other attending circumstances, it is clear that the Courts below have correctly came to the conclusion that the petitioner failed to prove that the respondent has committed any wilful default in payment of rents. In view of the concurrent finding of the Courts below on this aspect which is based on record and well appreciation of evidence, I am of the view that the said findings can not be disturbed in the revision.

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As far as the issue of bona fide requirement is concerned, the fact remains that the petitioner is an Ex-Military Servicemen, he secured a job at Guntur, he is residing at Guntur and that he was issued health card for himself and his family members and he can use that medical facility in any referral hospital and admittedly there are referral hospitals at Guntur. Therefore, the findings of both the Courts i.e., the Rent Controller and appellate Authority also cannot be said to be perversed. But, however, now the petitioner has filed certain documents. In view of the fact that the wife of the petitioner has been suffering from ill-health, it appears that she has been taking treatment. Now, the prescriptions issued by Dr.Ch.Hemavathi, Medical Officer, ECHS Poly Clinic, Guntur dated 13.03.2011, Dr.Mallika Goyal, Consultant Ophthalmologist, Apollo hospitals, Hyderabad, Dr.G.Kusuma Gayathri, Medical Superintendent, ECHS poly clinic, Guntur dated 17.08.2005 reveals that the wife of the petitioner has been referred to Military Hospital, Secunderabad.

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The main contention of the learned counsel for the tenant is that the doctors refer the patient to the choice of their hospital as per the request of the patients. Any how, admittedly above referred documents were not filed by the petitioner before the lower Court. They were not marked. In the above circumstances, I am of the view that the matter should be remanded back to the Rent Controller for fresh consideration. The learned Rent Controller may consider the above referred documents and if necessary recall the witnesses or allow the parties to adduce additional evidence in support of their contentions and may decide the matter without being influenced by any of the observations made by this Court or appellate Court independently, preferably within a period of three months from the date of receipt of a copy of this order.

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In view of the above discussion, the orders passed by the Courts

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below stands set aside. No costs.

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____________________ B.CHANDRA KUMAR,J

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Dt. 26^th August, 2011

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PNV

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[1] AIR 2002 SC 1373