THE HON’BLE MR JUSTICE V.SURI APPA RAO C.R.P.NO.2193 of 2009 DATED: 12.06.2014 Between:
Katta Nagendra Rao And .. Petitioner Balla Maheswara Vijayanand and another .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO C.R.P.NO.2193 of 2009
ORDER:
This CRP is directed against the judgment dated 6th April, 2009 in C.M.A.No.5 of 2005 passed by the learned Senior Civil Judge, Machilipatnam, whereby the learned Senior Civil Judge confirmed the order dated 31.10.2005 passed by the learned Rent Controller-cum- Principal Junior Civil Judge, at Machilipatnam in R.C.No.13 of 2002.
The revision petitioner is the tenant and the respondents are the landlords. The landlords preferred RCC No.13 of 2002 under Section 10(2)(iii)(v)(3)(a)(a), 12(1)(b) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act) for eviction of the tenant on the grounds of bona fide requirement, necessity of demolition of the building for construction of new building, availability of alternative building to the tenant and acts of waste by the tenant.
The tenant filed counter denying the each and every material contention of the petition filed by the landlords.
The learned Rent Controller after taking into consideration of the oral and documentary evidence available on record allowed the petition by order dated 31.10.2005 directing the tenant to vacate the schedule premises within three months from that day.
Aggrieved by the order of the learned Rent Controller, the tenant preferred C.M.A.No.5 of 2005 before the learned Senior Civil Judge, Machilipatnam.
The learned Senior Civil Judge, after taking into consideration of the material available on record and after re-appreciating the evidence adduced by the parties confirmed the order of the learned Rent Controller by dismissing the C.M.A. Hence, this civil revision petition is preferred by the tenant.
Learned counsel for the revision petitioner/tenant contended that the appellate Court ought to have taken into consideration of the total evidence adduced before the Rent Controller instead of part of the evidence. Learned counsel contended that there is no landlords and tenant relationship between the parties and that the appellate Court ought to have considered the evidence of PW.1, who categorically admitted in his cross examination that himself, Commissioner and Municipal Engineer went to the schedule premises for inspection and they found that the physical condition of the premises appears to be good. Learned counsel further contended that the landlords once withdrawn the suit for eviction with a liberty to file fresh suit, they should not have file RCC and as such the Appellate Court ought to have observed that RCC is not maintainable, therefore order under challenge is liable to be set aside. Learned counsel for the petitioner/tenant further contended that both the Courts below failed to consider the evidence available on record and therefore, this Court can interfere with those concurrent findings of facts. In support of his contention he relied on HARSHAVARDHAN CHOKKANI v [1] BHUPENDRA N.PATEL AND OTHERS , wherein the Supreme Court held that:
“The High Court can interfere with concurrent findings of fact by the Courts below in specified situations.
It is further observed that:
“There can be no controversy about the position that the power of the High Court under Section 22 of the Act is wider than the power under Section 115 CPC. Nonetheless, the High Court in exercising the revisional power which in its very nature is a truncated power. The width of the powers of the revisionsal Court cannot be equated with the powers of the appellate Court. In examining the legality and the property of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts provide is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of he aforementioned reasons exist in this case to justify interference by the High Court.”
In URIMI KAMAKSHAMMA (DIED) AND OTHERS v BOLEM SEETHAMMA[2] relied on by the petitioner’s counsel, the landlady therein filed eviction petition seeking of the eviction tenant therein from non-residential premises on the ground of bona fide requirement, and eviction was ordered by the Rent Controller. In appeal filed by tenant, landlady therein filed documents to show that tenant secured alternative accommodation of non-residential premises and therefore is liable to be evicted. The appellate authority did not consider those documents on the ground that there was no specific pleading thereto, and that subsequent facts can be brought to the notice of the Court by filing an affidavit or memorandum. Landlady filed an application before appellate authority with affidavit showing tenant’s and her sons’ possession and enjoyment of alternative shop rooms. In those circumstances, it was held by this Court that the approach adopted by the appellate authority in ignoring those documents on the ground that they were not properly pleaded while accepting the subsequent event of landlady taking possession of a shop from another tenant during pendency of rent control proceeding as contended by the tenant, to deny the relief of eviction sought by the landlady is improper and suffers from vice of impropriety. I n K.VENKATARAMIAH v [3] A.SEETHARAMA REDDY AND OTHERS the Supreme Court held that:
“When additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on.”
Learned counsel for the petitioner further submitted that the respondents/landlords have not pleaded in the suit or in the original RCC with regard to the personal requirement by way of amendment, a new plea was introduced and the same cannot be considered. In support of his contention he placed reliance in THE MUNICIPAL CORPORATION OF GREATER BOMBAY v LALA PANCHAM AND [4] OTHERS wherein the Supreme Court held that:
“Under Order 6 Rule 17 amendment of plaint introducing new case, amendment should not be allowed”
“The power under clause (b) of Sub0r.(1) of Rule 27 of O.41 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the Court could well proceed to consider them and decide the issue. But, the appellate Court cannot order a fresh trial. Such a course is not permissible under o.41 R.27, Civil P.C., when it has not proceeded under O.41 Rule 25 or remanded the case under O.41 Rule 23.”
Learned counsel further submitted that the lower appellate Court has not considered the written arguments submitted by the revision petitioner and on that ground also the judgment of the lower appellate Court is liable to be set aside. In support of his contention, [5] he placed reliance in G.JAYA RAO v STATE OF A.P.
held that:
this Court “Though decisions of the Supreme Court and High Court have been cited in written arguments, same do not find place in judgment of appellate Tribunal. Written arguments are submitted not for fancy sake. Right conferred by statute to a party to submit written arguments which are meant for consideration and adjudication. In the present case judge refused to consider written arguments and decisions cited before him. Judgment of appellate Tribunal shall not stand for judicial scrutiny for Judge’s failure to consider written arguments and adjudicate matter in light of written arguments which lead to miscarriage of justice. Judgment of appellate Tribunal, is set aside and the matter is remitted back for fresh consideration.
Learned counsel for the petitioner/tenant further submitted that the landlords have no intention to settle down at Pedana after retirement as they have palatial buildings at Hyderabad and the landlords therefore, bona fide not requires petition premises. In support of his contention placed reliance in MOHAMMED SULTAN v [6] RAMCHAND T.TOURAIN this Court held that:
“It is no doubt true that Patancheru cannot be treated as part and parcel of the Hyderabad city as such. However, the nature of evidence of PW.1 and PW.2 and also the conduct of the landlord had been well considered by the appellate authority and ultimately the appellate authority came to the conclusion that the landlord is not entitled to the relief of eviction on the ground of bona fide personal requirement.”
Relying on the decision, learned counsel for the petitioner/tenant contended that the respondents/landlords have no intention to settle down at Hyderabad after his retirement, therefore, the finding of the Tribunal is contrary to the evidence on record, and the order under challenge are liable to be set aside.
Per contra, learned counsel for the respondents submitted that the respondents/landlords retired from service recently and intends to settle down at native place and that though they are having own house at Hyderabad, the children are employees at Hyderabad at that the respondents requires house for their personal occupation after retirement. It is further submitted that the other reasons for seeking eviction is that the schedule premises was constructed about 70 years back with mud and mortar roof, the entire building is leaking, windows and doors are damaged. A pole was put up in support of falling of roof. The tiled house became beyond repairs and it is no longer safe to reside. The petitioner/tenant is an educational institution where the young children are sitting and attending classes and it may collapse at any time. If there are heavy rains, the rain water falls inside the tiled house. In that view of the matter, the appellate Court as well as the trial Court considered the evidence on record on proper lines and passed order of eviction which cannot be interfered in this revision.
The respondents/landlords have clearly stated that the schedule building was tiled house and constructed about 70 or 80 years back. The revision petitioner/tenant also admitted in the evidence that he put up Zink sheet roof as the building was leaking and he has not know the age of the building as stated by the landlords. Moreover, the tenant has admitted in the evidence that the building is the old tiled house situated in the low level as compared to road and there is every possibility of inundation when there are heavy rains. In this case advocate Commissioner was appointed to inspect the building with the help of Assistant Engineer to inspect the premises and submit his report. He clearly opined that the schedule premise is not in good condition and it is liable to be demolished. It is also an admitted fact that the report of the commissioner was accepted by the Rent Controller and the revision petitioner did not raise any objection on the report of the Commissioner and the Assistant Engineer.
I n SRI RAMA TRADING CO. TUNI, E.G.DISTRICT v [7] KOLLEPARA NOOKARAJU this Court held that:
Eviction petition is allowed by the Rent Controller on the grounds of denial of title, willful default and bona fide personal requirement. The appellate authority while confirming findings relating to denial of title and willful default, reversed finding of bona fide requirement on the ground of insufficient evidence. The evidence discussed in detail by Courts below. Concurrent findings of fact recorded by the Courts below, the High Court will not disturb concurrent findings of fact unless shown to be perverse, or not based on any evidence or based on improper appreciation of evidence.”
I n MOHAMMED ABDUL RAHMAN AND OTHERS v [8] B.MANORAMA AND ANOTHER this Court held that:
“Mere possibility of a different conclusion does not enable High Court to reverse finding of appellate authority. In exercise of revisional jurisdiction under Section 22, High Court cannot re- appreciate evidence.”
The revision petitioner filed application i.e. I.A.No.786 of 2013 to permit him to produce copy of the proceedings of the District Educational Officer, Krishna District at Machilipatnam in L.Dis.No.135/C2/1012, dated 31.10.2012 as additional evidence marking the same as Ex.B.8. The said petition is ordered. Ex.B.8 is marked. As seen from the letter dated 31.10.2012 the District Educational Officer, Krishna accorded permission for renewal of recognition for classes I to VI(E.M&TM) during the academic year 2012-13 to 2021 -22. On perusal of the proceedings of the District Educational officer dated 31.10.2012 no where the door number of the house is mentioned and the proceedings also silent about the door number and the extent of the building and other physical features and the accommodation available in the premises and other particulars of the building in which the educational institution is running. But simply renewed the recognition for the academic year 2012-13 to 2021-22 without mentioning the door number and other particulars of the building. Even according to the admission of the revision petitioner/tenant he is running another school from 1995 onwards in a different locality at Pedana in Mattam Street and the said school is English medium. He further admitted that he has 0.45 cents of land situated at Pedana to Bantumilli Road. He has clearly admitted that he set up another school in some other place in an extent of 0.45 cents in Pedana. It is the contention of the respondents/landlords that in the year 1999 elders compromised the matter and the tenant shifted the school to another building at Muttam Street and running the same except two classes. In support of his contention, the respondents/landlords examined PW.3 to prove the mediation.
The Rent Controller and the appellate Court after considering the entire evidence on record observed that in the year 1999 itself the petitioner/tenant shifted the school to another building in Mattam Street by securing alternative building and that the respondents/landlords, who are retiring from service are in need of petition schedule building for personal occupation, ordered eviction on the ground of bona fide requirement of the landlords for personal requirement and also on the ground that the age of the building is about more than 70 years as per municipal records. The said findings of fact recorded by the Courts below are based on proper appreciation of evidence on record. There is a leakage of water due to rains also noticed at the time of inspection by the Assistant Engineer, who inspected the building along with the advocate commissioner, who is no other than the Engineer deputed by Pedana municipality. Though, the revision petitioner/tenant has shifted the school to another premises which is situated in 45 cents, it appears that keeping some classes in the schedule premises only to prolong the litigation, when he is having ample accommodation in another area in which the school was shifted and the petition schedule building is in dilapidated condition which is aged 70 years, which is not safe for occupation and run the school. The Rent Controller as well as Appellate Court has rightly considered the entire evidence on record and that the respondents/landlords requires the premises for personal occupation after retirement, who intends to demolish the old building and construct new one in the same premises for personal occupation, even if the house number and the premises is mentioned in the proceedings since it is not fit for running school and the proceedings of the District Educational Officer is not helpful to the revision petitioner/tenant to continue in the premises. In the circumstances, the concurrent findings of facts arrived at by the Courts below does not warrant any interference by the Court.
For the above reasons, I see no ground to interfere with the findings arrived at by the Courts below as the same are on proper appreciation of evidence on record. Therefore, the revision petition is liable to be dismissed.
Accordingly, the revision petition is dismissed. The revision petitioner/tenant is directed to vacate and handover the vacant possession of the schedule premises within three months from to day. There shall be no order as to costs.
Date: 12.06.2014 V.SURI APPA RAO, J sur/kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO C.R.P.NO.2193 of 2009 DATE:12.06.2014
[1] 2003(1)An.W.R. 536(SC)
[2] 2002(3)ALT 490
[3] AIR 1963 SC 1526(1)
[4] AIR 1965 SC 1008
[5] 2003(1)L.S. 324
[6] 2004(1) AN.W.R.221(A.P.)
[7] 2005(4)ALD 748
[8] 2008(4) ALD 586