SHIVRAJ SANGHI Vs. KESHAV DEO DALMIA

JUDGEMENT

(1.) The revision petitioner herein is the landlord who filed RC No.712 of 1999 on the file of the Court of the I Additional Rent Controller, Hyderabad seeking eviction of the respondent on the ground of willful default in payment of rents. The case of the petitioner is that he filed RC alleging that he is the "Kartha" of Shivraj and sons, the owner of the premises bearing No.5-1-1068/1, situated at Gowliguda, Hyderabad and the respondent Keshav Deo Dalmia ( partner Dalmia Brothers) is the tenant. The lease deed was executed on 10.12.1986 for a period of 11 months on a monthly rent of Rs.400/- and a sum of Rs.10,000/- was deposited with the petitioner/landlord which is refundable at the time of vacating the petition schedule premises. After the expiry of the period under the said lease deed, no fresh lease was executed and the respondent has been continuing as tenant on the same terms and conditions, except the rent, which as per annexure 'A' shall be enhanced @ 10% of the rent at the end of the every third year. The respondent paid the enhanced rent from May to July, 1997 under receipt dated 10.7.1997 and thereafter, he did not pay the rent. The respondent has not paid the property tax for 10 years. He paid the tax of Rs.12,307.50 ps from 1996 on 10.7.1997. According to the petitioner, the respondent committed default in payment of rent and hence sought for eviction on that ground under Section 10(2)(i) of the A.P. Buildings (Lease, Rent & Eviction ) Control Act, 1960 (for short "the Act").

(2.) The respondent filed the counter alleging that the eviction petition in the name of individual is not maintainable. As per the averments in Para 3 of the eviction petition a lease deed was executed on 10.12.1986 by M/s.Dalmia Brothers represented by its Partner Keshav Deo Dalmia. M/s.Dalmia Brothers is a partnership firm and the firm has obtained the petition schedule premises under the lease deed dated 10.12.1986 and the eviction petition filed in the name of the respondent is not maintainable under law and is liable to be dismissed in limini. The petitioner has not made all the partners of the firm as parties to the eviction petition, hence, the same is not maintainable for non-joinder of necessary parties. It was further alleged that petitioner has not disclosed the particulars of the members of the joint family. The lease deed dated 10.12.1986 disclosed that the petitioner entered into the lease agreement in his individual capacity and not as a Kartha of the joint family. The other co-owners are proper and necessary parties to the eviction petition. Hence, the eviction petition is not maintainable on that ground also. It is further stated that the lease deed was executed on 10.12.1986 by the firm on payment of Rs.10,000/- as deposit with the petitioner and that holding of the said deposit amount is in contravention of Section 7 of the Act and the petitioner is liable to refund the said amount forthwith. It is also stated that the petitioner used to collect the rents as per his convenience once in three or four months at irregular intervals and he even collected 11 months rent in lumpsum. The practice of collection of rents at irregular intervals has been in existence since 1987. The rents sent by way of cheques have been encashed by the petitioner without any protest, thereby the petitioner by disowning his own conduct has given a go by to the terms and conditions of the lease deed dated 10.12.1986. Though the respondent sent the rents by way of cheques, the petitioner has not presented the same for encashment intentionally in order to create a ground for eviction. It was also stated that the petitioner has not presented the cheques sent to him for encashment, thereafter the respondent addressed a letter dated 16.2.2000 narrating the true facts and enclosing a cheque No.158057 towards the rent for the period from August, 1997 to January, 2000 and property tax for the year 1997-98 and 1998-99. The respondent has also requested the petitioner to furnish his bank account number and that in spite of receiving the said letter, the respondent failed to give any reply. The petitioner is not entitled to the payment of premium or other like sum in addition to the monthly rent and that the petitioner is liable, either to adjust the amount from out of monthly rents or to return the same. For the first time, the petitioner demanded the property tax on 10.7.1997 and the firm paid the same. The respondent after putting in appearance on the date of hearing i.e. 3.7.2000 paid Rs.3,521.20 towards the rent for the months of February, 2000 to July 2000 @ Rs.585.20 ps. per month and Rs.1,225/- towards the property tax for the year 1999-2000. The rent for the said period and the property tax were tendered by money orders and the same were returned as 'refused' and the said amount was paid to the counsel for the petitioner. Accordingly, it is stated that there is no default muchless willful default in payment of rent. Hence, the respondent prayed that the eviction petition may be dismissed with costs.

(3.) On the above pleadings, the Rent Controller framed the following points for consideration.