Monagari Pentamma vs Bhulakshmi And 3 Others

This Civil Revision Petition is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 challenging the order dt.05.02.2020 passed in R.C.A.No.78 of 2018 by the Additional Chief Judge, City Small Causes Court, ( for short 'the Appellate authority') confirming the order dt.18.07.2018 in R.C.No.237 of 2012 of the II Additional Rent Controller, City Small Causes Court, at Hyderabad ( for short 'the Rent Controller').

The petitioner herein is tenant of respondent in respect of a non-residential premises located at Nampally, Hyderabad.

The respondent herein filed Eviction Petition R.C.No.237 of 2012 against petitioner alleging that petitioner is a close friend of her husband and the R.C. Schedule property was let out to him on 27.04.2005 on a monthly rent of Rs.2000/-; the tenancy was oral in nature and the rent was exclusive of electricity charges and it was payable before 5th of each English Calendar of succeeding month; that no security deposit was taken at any point of time; and petitioner took the premises for doing business in sale of furniture.

The respondent further contended that petitioner was paying rents irregularly up to August, 2008; whenever petitioner paid rent, the respondent used to issue a receipt on a sheet of paper; that on 03.02.2009, petitioner wrote on a piece of paper that he was due Rs.10,000/- and also signed it; that this amount pertains to the rent from September, 2008 to January, 2009, and after that petitioner did not pay any rent.

The respondent further contended that the husband of petitioner died in the meantime and the respondent kept quiet for a while, but later when she demanded petitioner to pay rents, he did not do so, and committed default in payment of rents from September, 2008 to June, 2012; that she received summons in O.S.No.1657 of 2012 filed by petitioner against her; that petitioner created a false receipt on judicial stamp paper dt.25.05.2010 and committed willful default in payment of rent of Rs.70,000/- from September, 2008 to July, 2012; that petitioner having taking the premises for doing business in sale of furniture, changed the nature of business every six months, and since nine months prior to filing of the R.C., he is doing Real Estate business without the consent of respondent; and on that ground also, the petitioner is liable to be evicted.

The respondent further contended that she is a Homeopathy Doctor and was running a small clinic in her house; that her practice improved and number of patients increased, and the small room in her residential house was not sufficient. According to her, the R.C. Schedule property was more suitable for her to run clinic because it was located in a commercial area and had good facilities like parking;

and she therefore, prayed that she bona fidely requires the R.C.

Schedule premises.

The stand of petitioner in the RC:

Petitioner contended that though he is tenant of the respondent and rent was Rs.2,000/- exclusive of electricity consumption charges, and no date was fixed for payment of rent. He also claimed to have paid Rs.10,000/- as refundable deposit on the date of commencement of tenancy.

He alleged that respondent had received Rs.50,000/- on 25. 05.2010 and so the total refundable deposit lying with respondent was Rs.60,000/-, and respondent did not issue any receipt after receiving the deposit amount of Rs.10,000/- in cash and she also did not have the habit of giving rental receipts. He alleged that the respondent on 25.05.2010 voluntarily executed a receipt on stamp paper admitting that Rs.10,000/- was received by her as returnable deposit and that petitioner obtained ex parte status quo order against respondent on 17.07.2012 in O.S.No.1657 of 2012.

According to petitioner, he did not take the R.C. Schedule premises for any particular type of business but for general business purpose, and respondent used to collect rents as per her convenience. Petitioner also denied that he gave chit on 03.02.2009 to petitioner admitting that he is due Rs.10,000/- towards arrears of rents; that the respondent had number of properties, both residential and non-residential in different parts of the city which he had let out to various people; that respondent demanded him to increase the rent from Rs.2,000/- to Rs.10,000/- per month and he did not agree for enhancement of the rent.

According to petitioner, the respondent tried to forcibly dispossess him and so he filed the injunction suit O.S.No.1657 of 2012. He further alleged that respondent had undergone an operation and a steel rod was fixed, and so she cannot climb the staircase; that the R.C. Schedule premises was being used as office for Car Rentals and Transport business; that though the respondent was a Homeopathy Doctor, after the death of respondent's husband, she did not resume practice; and that her house was a double-storied building and the respondent also owned another house opposite to her residence.

Petitioner denied that the R.C. Schedule property was suitable for the respondent to run clinic; that the respondent was involved in real estate business and invested Rs.62 lakhs with third-parties between 2006 to 2009, and that the third-party had executed a document on 26.01.2001 promising to return Rs.10 and 5 lakhs every two months, and so after March, 2010 till November, 2011, the respondent was not practicing Homeopathy Medicine. He therefore prayed for dismissal of the RC.

Before the Rent Controller, the respondent examined herself as P.W.1 and marked Ex.P.1. The petitioner examined himself as R.W.1 and marked Exs.R.1 to R.4. Further Ex.R.1, a receipt dt.25.05.2010 marked by the petitioner, was sent to Forensic Lab for expert opinion and a Report Ex.X.1 obtained from the Forensic Lab was also marked and the Assistant Director, Forensic Lab, was examined as C.W.1.

The order of Rent Controller

By order dt.18.07.2018, the Rent Controller allowed R.C.No.237 of 2012.

The Rent Controller held that the petitioner proved his contention that there was an initial deposit of Rs.10,000/- lying with respondent and an additional deposit of Rs.50,000/- was also given to respondent; and thus, Rs.60,000/- refundable deposit was lying with respondent as on 25.05.2010 and so there were no arrears of rent. The Rent Controller arrived at this conclusion on the basis of the deposition of P.W.1, and the contents of Ex.R.1 which was proved to have been signed by the respondent.

The Rent Controller went on to hold that though respondent alleged that petitioner defaulted in payment of monthly rent for 35 months, i.e., from September, 2008 to July, 2012 at Rs.2,000/- per month, totaling Rs.70,000/-, in view of Ex.R.1 dt.25.05.2010, it has to be held that rents up to 25.05.2010 have been paid, and if at all, there could be a default from June, 2010 to July, 2012. It further held that the amount payable for these 26 months would be Rs.52,000/-, and after adjusting the same to the refundable deposit of Rs.60,000/- lying in the hands of respondent, there would not be any arrears of rent. He thus concluded that the respondent failed to prove that petitioner had committed willful default in payment of rent.

On the aspect of bona fide requirement of respondent, the Rent Controller noted that petitioner had admitted that respondent was a Homeopathy Doctor and her clinic was in her residence. He also referred to the admission of PW.1 that he did not file any documentary proof to show that the respondent invested in many firms and other businesses; that the petitioner however admitted that the R.C. Schedule premises was in a commercial area; and also admitted during cross-examination that he did not know whether respondent had any other commercial property in the Twin Cities of Hyderabad and Secunderabad.

The Rent Controller also observed that petitioner did not prove his contention that respondent stopped practicing Medicine and that the respondent cannot climb up to 2nd Floor of the R.C. Schedule premises. The Rent Controller disbelieved the plea that respondent cannot climb up to 2nd Floor because petitioner himself admitted in his counter that residential property where the respondent was residing was a double-storied building, and in the ground floor the respondent was having her clinic, and she was residing in the 1st Floor, and so she was able to climb stairs. The Rent Controller also observed that it is the choice of the landlady to choose the place of business most suitable for her, and Courts can have no concern to dictate to the landlady as to how and in what manner she should live.

Regarding the plea of change of user, the Rent Controller rejected the plea of petitioner that he had taken the premises for 'business' and not for any specific business. He observed that the very plea of petitioner indicates that he had an intention to keep changing his business as per his wish and convenience, that tenancies are normally granted for doing specific business, and there would not be any lease executed between parties without mentioning the nature of business. He further observed that petitioner admitted that he did not take any permission from respondent for changing the business from sale of furniture to transport business, and the written consent for change of user was mandatory and so petitioner was therefore liable to be evicted from the R.C. Schedule premises.

Challenging the same, the petitioner filed R.C.A.No.78 of 2018 before the Additional Chief Judge, City Small Causes Court, Hyderabad.

By order dt.05.02.2020, the said Appeal was also dismissed, confirming the findings of the Rent Controller.

The Appellate Authority held that petitioner did not deny that respondent was running a clinic in her residence and since the R.C. Schedule premises was located in a commercial area and the number of patients increased, her residence was not sufficient to run the clinic. It also noted that petitioner could not prove that respondent was having other non-residential properties. The Appellate Authority also held that petitioner cannot dictate terms to the landlady asking her to run the clinic in her residence only, and it is for her to decide which place is more suitable for running the clinic.

The change of user plea was also accepted by the Appellate Court observing that though there is no Lease Deed, the petitioner himself admitted in cross-examination that he is doing transport business and he did not take any permission from the respondent to change the business and that change of business amounts to change of user.

Aggrieved by the order of the Appellate Court, the petitioner filed the present Civil Revision Petition.

Heard the counsel for petitioner.

The counsel for petitioner contended that both the Rent Controller as well as the Appellate Court did not properly appreciate the evidence on record, and erred in directing eviction of petitioner from the R.C. Schedule premises. He also pointed out that respondent had raised a false plea about petitioner committing willful default in payment of rents which had been disbelieved by the Rent Controller. He reiterated that respondent cannot insist on doing Homeopathy Medicine practice in the R.C. Schedule premises when she was comfortable in her own residence to do such practice. He also contended that the plea of change of user made by respondent was wrongly accepted by the Rent Controller and the Appellate Court.

The consideration by this Court:

The fact that respondent was practicing Homeopathy Medicine in the ground floor of her residence was admitted by petitioner. She pleaded that her practice had improved and number of patients increased and it would be more convenient for her to do practice in Homeopathy Medicine in the R.C. Schedule premises which is located in a commercial area at Nampally.

Though petitioner sought to contend that respondent had undergone surgery and could not climb up the stairs, both the Rent Controller and the Appellate Court rejected the said plea because the very residence of respondent was a double-storied building and she had her clinic in the Ground Floor and residence on the First Floor, and she would thus be in a position to climb up the stairs.

As rightly held by the Rent Controller and the Appellate Court, it is not for the tenant to dictate to the landlady how she should adjust herself, and the landlady is the best person to decide which premises is more suitable for her to practice her profession.

Admittedly, no other non-residential premises was shown by petitioner to be owned by respondent, and this also is a factor rightly taken into account by both the Rent Controller and the Appellate Court to hold against petitioner.

On the aspect of change of user also, as rightly held both by the Rent Controller and the Appellate Court, normally when a lease is granted it would be granted for a particular type of business, and it is highly unusual for a lease to be granted just for 'business purpose' without naming the nature of business. Since the petitioner initially took the R.C. Schedule premises for doing business in furniture and later started doing transport business, there is a clear change of user and no written consent of respondent was obtained as is mandated by the Act.

In this view of the matter, I am of the opinion that the findings of fact by both the Rent Controller as well as the Appellate Court on the aspect of bona fide requirement and change of user are based on proper appreciation of evidence and application of correct principles of law and do not warrant any interference by this Court in exercise of jurisdiction under Section 22 of the Act.

Accordingly, the Civil Revision Petition fails and it is dismissed at the stage of admission.

The petitioner herein is granted time till 30th April, 2021 to vacate the R.C. Schedule premises. But, he shall continue to pay rents at Rs.2,000/- per month for the period up to 30th April, 2021 including arrears if any on or before 7th of the succeeding month.

The petitioner shall also file an undertaking within two (02) weeks from the date of receipt of copy of this order that he would vacate the R.C. Schedule premises by 30.04.2021 and that he would pay the arrears of rent and future rents till 30.04.2021.

In default of complying with any of these requirements, the petitioner shall be liable to be evicted from the R.C. Schedule premises forthwith. No order as to costs.

Accordingly, the Civil Revision Petition fails and it is dismissed at the stage of admission.

As a sequel, miscellaneous petitions pending if any in this Civil Revision Petition, shall stand closed.