Allowed

Smt. Zubeda Begum, v. Mohd. Junaid Qureshi

Telangana HC23 Aug 2011CRP/3828/2010

Case brief

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What is this about?

In a civil revision petition regarding an eviction suit, the High Court held that the respondent committed wilful default in rent payment due to failure to prove deposits and that the petitioner's plea of self-occupation due to marital discord was bonafide, granting her relief.

What did the court decide?

Vacate and deliver vacant possession pending from 30th November 2011 if arrears paid before 30th September 2011.

Smt. Zubeda Begum, Vs Mohd. Junaid Qureshi — Landlord and Tenant | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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CIVIL REVISION PETITION No.3828 of 2010

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Dated:- 2 3 rd August, 2011 Between:Zubeda Begum ...Petitioner AND Mohd. Junaid Qureshi …Respondent

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3828 of 2010

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ORDER:-

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This revision is directed against the judgment dated 16.07.2010 passed in R.A.No.132 of 2010 by the Additional Chief Judge, City Small Causes Court, Hyderabad (‘the lower appellate authority’, for brevity), whereby and whereunder, the order dated 04.12.2009 passed in R.C.No.552 of 2006 by the Principal Rent Controller – cum – XII Junior Civil Judge, Hyderabad (‘the Rent Controller’, for brevity), was confirmed.

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2. The petitioner herein is the landlady and the respondent herein is the tenant of the premises bearing municipal No.18-8-241/108 and 109 admeasuring 230 square yards situated at Moinbagh, Hyderabad (petition schedule premises). For the sake of convenience, the parties will be hereinafter referred to as per their array before the Rent Controller.

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3. The brief facts of the case are as follows:-

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The petitioner is the landlady of the petition schedule premises. She filed R.C.No.552 of 2006 before

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the Rent Controller under Sections 10(2)(i), 10(2)(ii)(b) and 10(3)(a)(i)(a) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (‘the Act’, for brevity), seeking eviction of the respondent on the ground of wilful default in payment of rents and for her bonafide requirement contending inter alia that the respondent obtained the petition schedule premises in May 1997 under an agreement of lease dated 09.05.1997; that respondent paid an advance of Rs.3,000/- and agreed to pay the monthly rent of Rs.2,000/- from 09.05.1997; that the respondent committed default in payment of rents from January, 2004 to July, 2004; that the respondent had changed the nature of the petition schedule premises without her consent and had sublet the premises for conducting marriage functions in the evening hours by making profits; that the respondent filed a suit in O.S.No.2059 of 2006 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad, for perpetual injunction to avoid the payment of rents; that the tenant got issued a legal notice dated 01.12.2006 and she received the same on 04.12.2006; that after the receipt of the said notice, she came to know that the respondent was depositing the rents in the bank account of her husband; that thereafter, she personally approached the respondent and demanded him to pay the arrears of rents; that in spite of repeated demands, the respondent failed to pay the rents to her and as such committed default in payment of rents; that she requires the petition schedule premises for her personal use and occupation

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and that she has no other property in Hyderabad city except the petition schedule premises; that at present, she is residing in a house at Begumpet in the capacity of permissive possessor.

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4. The respondent/tenant contested the matter; filed counter and admitted the jural relationship between him and the petitioner. The respondent denied that the petitioner approached her and demanded the payment of arrears of rent and the allegation of subleasing the petition schedule premises for conducting marriage functions in the evening hours and making profits. It is further contended that when the petitioner started harassing him, he filed a suit for perpetual injunction in O.S.No.2059 of 2006 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad, restraining the petitioner from interfering with his possession; that the allegation that he committed wilful default in payment of rents from January, 2004 to July, 2004 is false; that he had been depositing the rents in the bank account of the husband of the petitioner; that the petitioner has now created a false story that she had grievances with her husband; that he is sending the monthly rents through money order from the month of October, 2006 to the petitioner but she was avoiding to receive the same; that thereafter, he got issued a legal notice requesting the petitioner to furnish her bank account to enable him to deposit the rents, but the landlady has furnished incorrect bank account number i.e., 84404 of Darussalam

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Cooperative Urban Bank, Agapura, Hyderabad, whereas her correct account number is 8004; that after ascertaining the correct bank account number of the petitioner, he is depositing the rents in the said account of the petitioner; that the claim of the petitioner that she requires the petition schedule property for her bonafide requirement is incorrect and with a sole intention to harass him, she had taken such a false plea.

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5. Evidence was let in. On behalf of the petitioner/landlady, she herself was examined as P.W.1 and Exs.P.1 to P.5 were marked. On behalf of the respondent/tenant, he himself was examined as R.W.1 and Exs.R.1 to R.66 were marked.

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6. The learned Rent Controller, holding that the respondent filed a civil suit in O.S.No.2059 of 2006 against the petitioner and that the petitioner filed the Eviction Petition after filing the civil suit by the respondent and, therefore, the action of the petitioner in filing the Eviction Petition is a counterblast to the civil suit filed by the respondent and that there is no proper explanation of the petitioner as to why she did not demand rents from January, 2004 to July, 2004 till the respondent filed a suit for injunction against her in the year 2006 and that there is a finding in the judgment in O.S.No.2059 of 2006 that the respondent was regular in payment of rents to the petitioner and that since no appeal has been filed, the said judgment has become final and that the petitioner has refused to receive the

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money orders sent by the respondent towards rent and these circumstances go to show that there is no wilful default in payment of rents by the respondent to the petitioner and that the plea of requirement of the petition schedule premises by the landlady is not bonafide, dismissed the R.C. Aggrieved by the same, the petitioner preferred an appeal before the lower appellate authority and the lower appellate authority, on appreciation of oral and documentary evidence available on record, dismissed the appeal confirming the order passed by the Rent Controller and thus, the petitioner is under revision before this Court.

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7. Sri Nazir Ahmed Khan, learned counsel for the petitioner/landlady submitted that the respondent was irregular in payment of rents and that only with a sole intention to harass the petitioner, the respondent filed a civil suit for perpetual injunction and that the respondent had also occupied a single room in the petition schedule premises which was in possession of the petitioner and that the lower appellate authority held that the finding in judgment in O.S.No.2059 of 2006 that the respondent had committed default in payment of rents to the petitioner is not binding on it and that the tenant committed default in payment of rents, but the same cannot be said to be wilful and gave time to the tenant to deposit the rents from within a period of one month from the date of its order. It is vehemently argued that when the lower appellate authority has found that the

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respondent had committed wilful default in payment of rents, it ought to have allowed the appeal and passed the order of eviction. It is also his submission that though the petitioner had specifically pleaded that she requires the petition schedule premises bonafidely, but this aspect was not taken into consideration by both the Courts below. His specific submission that the respondent had committed wilful default in payment of rents from January, 2004 to July, 2004 and that he had not paid this amount during the pendency of the proceedings also. It is also submitted that if at all the petitioner refused to receive the money orders sent by the respondent towards rent, the respondent ought to have followed the procedure prescribed under Section 8 of the Act. It is his further submission that the findings of both the Courts below are perverse and against the record. It is also submitted that it is not the case of the petitioner that there is no practice of issuing receipts towards the rents received, but both the Courts below held that it is an admitted case that there is no practice of issuing receipts for the rents received. His main submission is that the respondent, with a view to avoid payment of rents and to harass the petitioner, filed a civil suit and, therefore, subsequent filing of Eviction Petition by the petitioner cannot be treated as a counterblast to the civil suit filed by the respondent and that both the Courts below have committed error in dismissing the R.C. and the appeal filed by the petitioner, which resulted in manifest injustice to her. In support of his contentions, learned counsel had

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relied upon the judgment in the cases between B.Satyanarayana Vs. Krishna Murthy^[1] , Mohan Lal Vs. Shajjia Sultana^[2] , Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao^[3] , Gokara Konda Sita Vs. Cheedala Ramakrishna Rao^[4] , and Kotnala Nagaratnam Vs. Nainala Madhavarao^[5] .

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8. Per contra, Sri Syed Kareemuddin Shakeel, learned counsel for the respondent/tenant supported the impugned judgment and submitted that the petitioner had taken inconsistent pleas before the Rent Controller and the lower appellate authority which shows that she does not require the petition schedule premises for her bonafide requirement and that the respondent had not committed any default in payment of rents to the petitioner and that he had deposited the amount into the bank account of the husband of the petitioner and, therefore, no interference is required in the matter.

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9. I have considered the above rival contentions. The points that arise for consideration in this revision are (1) whether the respondent has committed wilful default in payment of rents to the petitioner and if so, whether he is liable to be evicted; and (2) whether the petitioner bonafidely require the petition schedule premises and on that ground whether the respondent is liable to be evicted.

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Point No.1:-

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10. The petitioner’s specific case is that the respondent committed default in payment of rents from January, 2004 to July, 2004. It is also her case that she requires the petition schedule premises for her personal use and occupation and that she has no other alternative accommodation in Hyderabad city except the petition schedule premises. The case of the respondent is that he was depositing the rents in the account of the husband of the petitioner. The lower appellate authority observed that the respondent has not filed any document to show that he paid the rents from January, 2004 to June, 2004. Admittedly, neither the statement of bank account of the husband of the petitioner was summoned nor he was examined. The lower appellate authority, considering the above facts, rightly held that the respondent failed to deposit the rents from January, 2004 to July, 2004 to the petitioner. I have gone through the entire evidence. There is no evidence except selfserving statement of the tenant about the payment of rents from January, 2004 to July, 2004 either to the petitioner or to her husband in these proceedings. Thus, respondent has also failed to prove that he had deposited certain amounts in the bank account of the husband of the petitioner, as contended by him. He could have filed receipts issued by the bank to substantiate his claim.

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11. The lower appellate authority held that the respondent initially filed a civil suit for perpetual injunction and after filing the said suit, the petitioner has

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filed the Eviction Petition and, therefore, it cannot be said that non-payment of rents for the above said period cannot be said to be wilful. Thus, the lower appellate authority, though came to the conclusion that the respondent committed default in payment of rents, gave him time to pay the arrears of rents within a period of one month from the date of its judgment. Admittedly, R.C.No.552 of 2005 was filed in the year 2006. It is not the case of the respondent that subsequently he paid the rents to the petitioner during the pendency of the proceedings. He did not pay the arrears of rent to the petitioner at any time before filing eviction petition or subsequently. Thus, it is clear case of wilful default and not mere default. Therefore, the findings of the lower appellate authority that the default is not wilful are clearly perverse and this point is answered in favour of the petitioner/landlady.

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Point No.2:-

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12. It is the case of the petitioner that she requires the petition schedule premises for her self occupation. Her specific case is that she has been residing with her daughter at Begumpet as a permissive possessor. It appears that in the eviction petition filed by her, she pleaded that she was residing separately from her husband and living with her children. However, in the chief examination, she stated that she was residing with her husband at Begumpet. It has to be seen that the petitioner is aged about 54 years as on the date of filing

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of R.C. before the Rent Controller. Her case is that she wants to lead a peaceful life for rest of her life. It is not the case of the respondent that the petitioner is having any other residential premises in Hyderabad city. The Rent Controller observed that the petitioner did not establish any strong evidence to prove her contention on this aspect. Admittedly, the petitioner has two sons and one daughter and all of them are married and well settled and her daughter is living separately with her husband. Though in the chief examination the petitioner deposed that she has been residing with her husband at Begumpet along with her two sons and their families, but she had categorically deposed that her husband is a quarrelsome person and does not maintain her properly and her sons are not bothered about her as they are busy with their respective avocations. She had also categorically deposed that for leading a peaceful live at her old age, she has decided to reside in her own house. She was cross-examined from which it was elicited that no divorce took place between her and her husband. Thus, it is clear that her relationship with her husband is not completely broken, but her case is that her husband is a quarrelsome person and, therefore, she wants to reside separately from her husband. During the crossexamination, she deposed that she is residing separately from her husband. No suggestion was given to her that her husband is not a quarrelsome person or that she does not require the petition schedule premises for leading a peaceful life in her old age. When the

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respondent was examined in chief, he has categorically deposed that he does not know whether the petitioner owns any other property other than the petition schedule premises in Hyderabad city. His case is that he is running a school in the petition schedule premises. However, he admitted that he had not obtained any permission from the Government for running a school. His case is that the school belongs to a registered society. It is not clear as to how he is running a school without obtaining any permission from the Government. There is no answer from the respondent about the claim of the petitioner that her husband is a quarrelsome person and that she wants to have a separate residence to lead a peaceful life at her old age.

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13. From a careful examination of the rival contentions and the evidence let in, it is clear that both the Courts below have failed to consider the basic issues viz., the petitioner is an old aged lady of about 54 years, her husband is a quarrelsome person and is not maintaining her properly, though the petitioner has been residing with her sons, they are also not taking care of her, the petitioner wants to have lead a peaceful life in her old age. When the petitioner has got no other residential property in Hyderabad city, it cannot be said that her plea is not a bonafide one. Therefore, I hold that both the Courts below have committed error in dismissing the R.C. and the appeal and the revision should succeed.

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14. In the result, the Civil Revision Petition is

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allowed and the respondent herein/tenant is directed to vacate and deliver vacant possession of the petition schedule premises to the petitioner herein/landlady. However, having regard to the fact that the respondent is running a school in the petition schedule premises, he is granted time till 30^th November, 2011 to vacate and deliver the vacant possession of the petition schedule premises to the petitioner herein/landlady, subject to payment of rents to the petitioner and also the arrears of rent, if any, before 30^th September, 2011. There shall be no order as to costs.

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_________________________ Justice B.Chandra Kumar

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23^rd August, 2011 Bvv

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[1] 2002 (2) ALD 187 [2] 2007 (6) ALD 497 [3] 2001 (6) ALD 27 (FB) [4] 2006 (3) ALT 593 [5] 2010 (3) ALT 782

Smt. Zubeda Begum, v. Mohd. Junaid Qureshi

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Smt. Zubeda Begum, v. Mohd. Junaid Qureshi

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