IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4496 OF 2008 BETWEEN Pakanati Padmavathamma.
…PETITIONER AND R. Srinivasulu.
…RESPONDENT Counsel for the petitioner: MR. M.V.S. SURESH KUMAR Counsel for the Respondent: None Appeared The Court made the following: -
ORDER:
I had heard the learned counsel for the petitioner on 24.06.2010 and awaiting appearance on behalf of the learned counsel for the respondent, the matter was directed to be posted this week. Nobody appeared in the forenoon and in the afternoon when the matter is called. The revision is, therefore, being disposed of.
2. Petitioner, who is the landlord is aggrieved by the order of the lower appellate Court whereunder the appeal in R.C.A.No.4 of 2007 filed by the respondent/tenant relating to proceedings under Section 8(5) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’), has been allowed.
3. The respondent herein filed R.C.C.No.23 of 2003 under Section 8(5) of the Act alleging that he is the tenant on a monthly rent of Rs.500/- and using the premises in question for establishing lathe machine workshop and that the petitioner/landlord is not receiving the rents after April 2003 and as such, gave requisite notice and then filed the present application seeking permission to deposit rents.
The petitioner/landlord filed a counter disputing that the rent of the premises is Rs.500/- instead claiming that the rent is Rs.1,450/- and further claiming that since November 2002 onwards the respondent/tenant has defaulted in payment of rent. According to the petitioner/landlord, therefore, the building is outside the purview of the Act in view of the quantum of rent and that she has already terminated the tenancy of the respondent herein and has filed eviction suit, which is pending.
4. The learned Rent Controller examined the witnesses and came to the conclusion that the respondent had failed to establish the monthly rent at Rs.500/- as alleged by him and in view of the serious dispute with regard to the quantum of rent, declined permission to deposit rent as prayed for by the respondent.
5. Aggrieved thereby, the appeal was preferred by the respondent/tenant, which has now been allowed under the impugned order on the ground that there is a dispute regarding quantum of rent and pending the suit for eviction and recovery of rent instituted by the petitioner/landlord against the respondent, the respondent herein can be permitted to deposit monthly rent at Rs.500/-. The aforesaid order is questioned by the petitioner/landlord in this revision.
6. Learned counsel for the petitioner submits that without adjudicating on the quantum of rent the lower appellate Court committed error in ordering respondent’s application under Section 8(5) of the Act. He also submits that the lower appellate court having found that the petitioner is not receiving rent at Rs.500/-, it was sufficient to disallow the prayer of the respondent for deposit of rent.
7. From the facts it is evident that the quantum of rent is in serious dispute, while the petitioner claims the rent to be Rs.1,450/- per month the respondent claims that it is only Rs.500/-. There is no adjudication with regard to quantum of rent by the Rent Controller as well as the appellate authority and in paragraph 7 of the order, the learned Rent Controller finds that except oral assertion the respondent/tenant has failed to establish the quantum of rent as no rental receipts are filed. The appellate Court in paragraph 6 came to notice that the tenant himself was maintaining a book containing the payment of rent but the burden of establishing the quantum of rent was placed on the petitioner/landlord without noticing that it was primarily for the respondent/tenant to have produced the said book containing acknowledgements of the landlord to establish the quantum of rent. Further, it is not established that the respondent/tenant has complied with all the ingredients of Section 8 of the Act to enable him to seek order for deposit of rent.
8. In the light of the fact that the petitioner’s civil suit is pending with respect to eviction as well as arrears of rent, the question of jurisdiction of the Rent Controller also arises in the matter, as the rent being more than Rs.1,000/- as per the petitioner/landlord, the Rent Controller would not have jurisdiction to entertain the petition of the respondent. Further, in view of the fact that this Court while admitting the revision petition on 24.10.2008 granted interim stay of the impugned order of the lower appellate Court, obviously the respondent/tenant had not been able to deposit any amount with regard to monthly rent, as allowed by the lower appellate Court.
In the circumstances, the impugned order is liable to be set aside, as it is not passed on any evidence and is not in conformity with Section 8(5) of the Act. Secondly, the civil Court has seized of the matter relating to arrears of rent and as such, if the respondent so chooses, he may file an appropriate application before the civil Court for deposit of rent, which, if made, shall be considered on its own merits.
With the above observations, the civil revision petition is allowed.
There shall be no order as to costs.
VILAS V. AFZULPURKAR, J July 1, 2010 DSK