Ramesh Prasad Upadhyay v. Chillampally Vimaladevi

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION NO.2915 OF 2017 ORDER:

This petition, under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act') read with Section 115 of CPC, is filed challenging the judgment, dated 13.10.2016 in R.A.No.148 of 2014 passed by the Chief Judge, City Small Causes Court, Hyderabad.

The said appeal was filed by the tenant aggrieved by the order in R.C.No.316 of 2012, dated 24.03.2014 passed by the Principal Rent Controller-cum-XII Junior Civil Judge, City Small Causes Court, Hyderabad. The respondents herein are the alleged landlords of the schedule premises and let out the same to the petitioner herein on a monthly rent of Rs.2,500/- in the month of March, 2007 under an unregistered lease deed for five years and the rent was exclusive of electricity consumption charges payable on or before 5th of every calendar month for the purpose of running business. The tenant allegedly committed wilful default in payment of rents from March, to October, 2011.

Subsequently on 18.11.2011, he paid rents from March, 2011 to October, 2011 and thereafter stopped payment of rent from November, 2011. Thus, he committed wilful default in payment of rents from November, 2011 to August, 2012 at the rate of Rs.3,000/- per month amounting to Rs.30,000/-. The tenant filed counter in the said R.C. contending that his father obtained premises on monthly rent of Rs.35/- and Rs.10,000/- was deposited as interest free deposit refundable by

the owner of the premises at the time of vacating the premises. The deposit is still lying with the legal heirs of the original owner G.Shankar. The present rent of schedule premises is Rs.900/- per month but not Rs.3,000/- as claimed by the alleged landlords. While the matter stood thus, in the month of August, 2012, a notice dated 08.07.2013 bearing No.774/ACP/CS/GHMC/2012 under Section 459 of the Hyderabad Municipal Corporation Act, 1958 was issued to the 1st respondent for demolition of building bearing No.15-2-774 and 620, 621 Osmangunj, Hyderabad and in pursuance of the notice, the building was demolished on 20.08.2013 and thereafter, the petitioner herein is no more as tenant of the premises and prayed to dismiss the petition. During enquiry before the Rent Controller, respondent No.2 herein examined himself as PW1 and got marked Exs.P1 and P2. M.Narender was examined as P.W.2. The petitioner herein himself was examined as R.W.1 and got marked Ex.R1. He also examined one Vijay Kumar as R.W.2.

Upon hearing both the counsel, the Rent Controller concluded that the petitioner committed wilful default in payment of rent from November, 2011 to August, 2012 and also for the subsequent period. Recording a specific finding, ordered eviction and two months time was granted to deliver the vacant possession of the property.

The tenant preferred an appeal under Section 20(1) of the Act in R.A.No.148 of 2014 and the Appellate Court upon hearing arguments of both the counsel confirmed the eviction order passed by the Principal Rent Controller vide judgment dated 13.10.2016.

Thus, both the Rent Controller and Appellate Court recorded concurrent finding with regard to wilful default in payment of rent for the period referred above, disbelieving the alleged deposit lying with the respondents herein (landlords/petitioners before the Rent Controller).

Aggrieved by the order, the present revision petition is filed under Section 22 of the Act raising several contentions mainly on the ground that the building was demolished thereby the petitioner ceased to be a tenant of the premises and thereby the question of evicting from the premises does not arise, but the Rent Controller and the Appellate Court did not consider the specific contention in proper perspective based on the material and committed an error and requested this Court to set aside the order. Heard learned counsel for the petitioner at the stage of admission.

During hearing, learned counsel for the petitioner reiterating the contention that there was no subsisting relationship of landlord and tenant in view of demolition of building and thereby the order passed by the Rent Controller cannot be sustained and prayed to allow the revision setting aside the concurrent findings recorded by both the Rent Controller and Appellate Court. Considering the contentions of the petitioner, the sole point that arise for consideration is:- Whether this Court by exercising power under Section 22 of the Act can interfere with the fact findings recorded by the Rent Controller and if so, whether the eviction order

passed by Rent Controller and affirmed by the Appellate Court is liable to be set aside ?

Undisputedly, the Rent Controller recorded a fact finding based on the evidence available on record and held that the petitioner committed wilful default in payment of rent from November, 2011 to August, 2012 and for the subsequent period and the said finding was affirmed by the Appellate Court in R.A.No.148 of 2014, dated 13.10.2016.

This Court, under Section 22 of the Act, have limited jurisdiction since the language used in Section 22 of the Act indicates that this Court is required to decide the legality, regularity or propriety of such an order or proceeding. Therefore, the jurisdiction of this Court is limited and at best, this Court can test whether the order under challenge is legal or not. A similar question came up before the Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh1 wherein the Constitution Bench of the Apex Court while dealing with the appeals which arose under the provisions of Kerala Buildings (Lease and Rent Control) Act, 1965 and the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 categorically held that the High Court cannot interfere with the findings of fact recorded by the Appellate Court while exercising jurisdiction under Section 22 of the Act, which is in para materia with the provision dealing with revision in Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

1 AIR 2014 SC 3708

Therefore, this Court cannot interfere with the concurrent fact findings recorded by both the Rent Controller and Appellate Court. The sole ground urged before the Rent Controller is that the petitioner committed wilful default in payment of rent from November, 2011 to August, 2012 almost for 11 months at the rate of Rs.3,000/- based on the findings available on record. Such finding cannot be interfered with while exercising jurisdiction under Section 22 of the Act as per the Constitution Bench judgment which is re-affirmed in the later judgment reported in Tmt.Kasthuri Radhakrishnan and others v. M.Chinniyan and others (Civil Appeal No.5158 of 2009 dated 28.01.2016).

It is difficult for me to hold that to reverse the current findings recorded by the Rent Controller and Appellate Court with regard to wilful default for the months of November, 2011 to August, 2012. The main contention of the petitioner is that the premises was demolished in the month of July, 2013, but the Rent Controller and the Appellate Court examined the issue and concluded that the petitioner was continuously carrying on business in the schedule premises.

Section 2(3) of the Act defined the word 'Building' means any 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. Thus, as per definition of the word 'building', it must be an existing one and it includes the appurtenant site but there must be a house or hut. It is the contention of the petitioner that the building was demolished and in support of his contention, he produced Ex.R1 notice issued by Municipal Corporation, Hyderabad. At best, Ex.R1 notice would establish a notice under Section 446 of the Greater Hyderabad Municipal Corporation Act was issued to demolish the premises as it is endangerous to the public but that does not disclose the actual demolition of the building either by the Municipality or by the landlord or any other person. Ex.

R1 is not sufficient to establish the demolition of the building and accept the contention of the petitioner that the petitioner ceased to be a tenant after the alleged demolition of the building. Hence, the contention of the petitioner cannot be accepted as the Rent Controller and Appellate Court concurrently recorded the fact findings holding that the petitioner committed wilful default in payment of rent for 11 months commencing from November, 2011 to August, 2012 and also the petitioner is liable to vacate the premises.

On over all consideration of entire material on record, I find no ground to interfere while exercising power under Section 22 of the Act since the power is limited to decide the legality, regularity or propriety of the order passed by the Appellate Court under Section 22 of the Act. The appeal is devoid of merits and consequently, the revision is liable to be dismissed affirming the concurrent orders passed by Rent Controller and Appellate Court.

With the above observation, the Civil Revision Petition is dismissed. No costs.

Miscellaneous petitions, if any, pending in this petition shall stand closed.

___________________________________ M. SATYANARAYANA MURTHY, J JUNE 29, 2017 ssp