Smt. Pusibai Rathi Vs. Sri Raghavendra Rice Depot and another
Email(Arising out of SLP (Civil) No. 10955 of 1992)
(Arising out of SLP (Civil) No. 10955 of 1992)
A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960:
Sections 10(2)(i), 10(2)(iii) and 10(2)(v) – Eviction on the ground of wilful default in payment of rent – G, the tenant, took the plea that he surrendered the tenancy and thereafter his son was recognised as the tenant – No documentary evidence to show the surrender of tenancy – Finding of the Rent Controller that both father and son in collusion played fraud on the landlady and that G was the tenant who committed the wilful default – Eviction order passed by the Rent Controller up
Held –
It is not in dispute that Gaddam Subba Rao was the tenant to start with. In the eviction petition, he, however, took the plea that he surrendered the tenancy in 1983 and delivered the property to the landlady and immediately thereafter Gaddam Raghavendra Rao, respondent no.1 was recognised as a tenant and that he used to pay the rent. This plea was seriously contested by the landlady. The learned Rent Controller having considered the evidence held that both father and son have been doing the same business and mere change of the proprietor’s name does not in any way effect the relationship of landlady and tenant between the appellant and Gaddam Subba Rao, respondent no.2. One other important finding based on evidence is that it has not been proved that Gaddam Subba Rao surrendered the possession of the schedule premises to the landlady and that then it was let out to Gaddam Raghavendra Rao. Admittedly there is no documentary evidence to show that there was such surrender and no delivery receipt is produced. As rightly observed by the Rent Controller, when both father and son were occupying the premises together, nothing prevented the father Gaddam Subba Rao to examine his son to prove the tenancy between the landlady and Gaddam Raghavendra Rao. No rent receipts have been produced. On the basis of all these materials the Rent Controller held that Gaddam Subba Rao has taken a false plea of surrender and that both father and son were in collusion in order to play fraud on the landlady. These findings based on evidence are very relevant and they go to show that Gaddam Subba Rao, respondent no.2 was the tenant and committed wilful default and that the plea set up by Gaddam Raghavendra Rao, respondent no.1 that he was the tenant, had no basis and is not supported by any evidence worth mentioning. In such a situation the order of the Rent Controller passing eviction order against both the respondents is perfectly in order and no fresh consideration of the matter is necessary. (Para 5)
1. Leave granted. Heard both the counsel.
2. This matter arises under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the “Rent Act”. The appellant herein is the landlady and she let out the suit premises to one Gaddam Subba Rao, respondent no.2, the father of Gaddam Raghavendra Rao, respondent no.1, for non-residential purposes. The appellant filed a petition for eviction under Sections 10(2)(i), 10(2)(iii) and 10(2)(v) of the Rent Act on the ground of wilful default and also on the ground that respondent no.2 committed acts of waste. Respondent No.2, Gaddam Subba Rao contested the petition and the plea taken by him was that he did not continue the tenancy as he had already vacated the premises in March, 1983 and that there are no arrears till the time of vacating the premises. He further pleaded that after delivery of the premises to the landlady, his son Gadam Raghavendra Rao, respondent no.1 has been recognised as a tenant who is trading under the name and style of Sri Raghavendra Rice Depot and that he has been paying the rent to the appellant and that the appellant having collected the rent from Gaddam Raghavendra Rao yet filed this eviction petition ingeniously. The learned Rent Controller held that Gaddam Subba Rao was the tenant and that he had taken a false plea regarding surrendering of the premises in 1983 with a view to get over the ground of wilful default and that both father and son were in collusion in changing the name of the proprietor in the sign board of Sri Raghavendra Rice Depot. He accordingly held that there was relationship of landlady and tenant between the appellant and Gaddam Subba Rao who committed wilful default and ordered eviction of both the respondents. The learned Rent Controller also held that Gaddam Raghavendra Rao, respondent no.1 herein was only a nominee of respondent no.2, a sub-tenant, and that both of them should deliver the possession of the schedule premises to the landlady after vacating the same.
3. However, during the pendency of the eviction proceedings, Gaddam Raghavendra Rao filed an application under Order 1 Rule 10 and Section 151 C.P.C. to implead him as the respondent. That was rejected on 13.2.87 by the Rent Controller holding that he being the son could be examined during the enquiry in the main eviction petition to establish that respondent no.2 Gaddam Subba Rao was not the tenant. Respondent no.1 preferred an appeal to the Subordinate Judge, Vijayawada but that was rejected. He further preferred a revision petition before the High Court which was also rejected.
4. To Continue the narration, respondent no.2 against whom the eviction petition was allowed, filed an appeal which was also rejected by an order dated 14.8.89 by the Subordinate Judge, Vijayawada, the appellate authority. It may be mentioned here that Gaddam Raghavendra Rao, respondent no.1 also filed an appeal RCC MA No.114/87 before the Subordinate Judge questioning the order of the Rent Controller as a third party and as an aggrieved person. In that appeal he pleaded that he wanted to come on record and filed an application for impleading him as a party but that was dismissed and his further appeal and revision also were dismissed. Consequently he could not participate in the eviction proceedings and that he is the tenant and that the order of eviction can not be enforced against him as he had no opportunity to participate in the proceedings. The appellate authority allowed that appeal and set aside the directions given by the Rent Controller to Gaddam Raghavendra Rao also to deliver possession of the petition schedule premises. Against the said order the landlady-appellant filed Civil Revision Petition No.422/90 in the High Court. A learned Single Judge of the High Court upheld the impugned order holding that no decree or decreetal order can be passed against a person who is not a party to the proceedings and therefore the order evicting Gaddam Raghavendra Rao can not be enforced. The learned Single Judge however thought it proper to remit the matter to the Rent Controller for fresh consideration so far as eviction of Gaddam Raghavendra Rao is concerned and in that view of the matter he set aside all the orders passed by the Rent Controller as well as the appellate authority. The learned Single Judge also held that so far as eviction order against Gaddam Subba Rao, respondent no.2 is concerned, the same stands. The present appeal is filed against the said order.
5. It is not in dispute that Gaddam Subba Rao was the tenant to start with. In the eviction petition, he, however, took the plea that he surrendered the tenancy in 1983 and delivered the property to the landlady and immediately thereafter Gaddam Raghavendra Rao, respondent no.1 was recognised as a tenant and that he used to pay the rent. This plea was seriously contested by the landlady. The learned Rent Controller having considered the evidence held that both father and son have been doing the same business and mere change of the proprietor’s name does not in any way effect the relationship of landlady and tenant between the appellant and Gaddam Subba Rao, respondent no.2. One other important finding based on evidence is that it has not been proved that Gaddam Subba Rao surrendered the possession of the schedule premises to the landlady and that then it was let out to Gaddam Raghavendra Rao. Admittedly there is no documentary evidence to show that there was such surrender and no delivery receipt is produced. As rightly observed by the Rent Controller, when both father and son were occupying the premises together, nothing prevented the father Gaddam Subba Rao to examine his son to prove the tenancy between the landlady and Gaddam Raghavendra Rao. No rent receipts have been produced. On the basis of all these materials the Rent Controller held that Gaddam Subba Rao has taken a false plea of surrender and that both father and son were in collusion in order to play fraud on the landlady. These findings based on evidence are very relevant and they go to show that Gaddam Subba Rao, respondent no.2 was the tenant and committed wilful default and that the plea set up by Gaddam Raghavendra Rao, respondent no.1 that he was the tenant, had no basis and is not supported by any evidence worth mentioning. In such a situation the order of the Rent Controller passing eviction order against both the respondents is perfectly in order and no fresh consideration of the matter is necessary.
6. In the result the order in RCC MA No. 114/87 dated 14.8.89 passed by the Subordinate Judge, Vijayawada and the order in C.R.P. No. 422/90 dated 21.3.92 passed by the High Court are set aside and the order in RCC No.70/85 dated 10.8.87 passed by the Rent Controller is restored. The appeal is accordingly allowed with costs. The respondents, however, are given time till end of March, 1993 to vacate the premises on filing the usual undertaking within two weeks from today.
