SRINIVASA METAL STORES Vs. CH JOGESWARARAO

JUDGEMENT

(1.) This is a revision petition preferred by the original tenant being aggrieved by the judgment and order passed by the Principal Subordinate Judge, Tenali dated 1-12-1995 passed on his file in R.C.A.No. 23 of 1987, by which, the judgment and order of the Rent Controller, Tenali, dated 20-11-1987 passed in R.C.C.No. 24 of 1985 has been set aside by directing the eviction of the petitioner. The learned Counsel appearing for the petitioner submitted that the judgment of the lower appellate Court was liable to be set aside on the ground that the lower Court misdirected itself while allowing the appeal. He submitted that the Rent Controller has rightly dismissed the eviction petition filed by the respondent-landlord by holding that the respondent/landlord has not proved his bona fide requirement and also the wilful default. On the other hand the learned Counsel for the respondent strenuously supported the order of the lower appellate Court. In order to appreciate the rival contentions on both sides I have to note, summarily, the few admitted facts of the case.

(2.) It is an admitted fact that the petitioner/tenant filed a suit in O.S. No. 321 of 1983 alleging the illegal dispossession by his landlord Sri C. Subba Rao and obtained an order of injunction and in that suit he was depositing the rent at the rate of Rs. 400/- per month. In the meanwhile during the pendency of the said suit the proceedings were initiated by Sri C. Subba Rao in R.C.C.NO. 35/83 for his eviction on the ground that the tenant committed wilful default in paying the rent. Subsequently his son Sri Kundula Venkataswamy filed another eviction petition in R.C.C.No. 24/85 on the file of the same Rent Controller, alleging that due to the family dispute there was a partition between himself and his father Sri C. Subba Rao, and as per the partition the suit premises had fallen to his share and he bona fidely required it. The son also alleged that in spite of the notice issued by him the tenant has not paid the rent, therefore, he committed the wilful default in paying the rent. The tenant/petitioner resisted both the petitions filed by the father as well as by his son contending that he has never committed a default. When his father refused to receive the rent sent by Money order he filed a suit in O.S.No. 321/83 and with the permission of the Court he went on depositing the rent in the said suit. Later he has deposited the rent in the eviction petition filed by the son and at no point of time he has defaulted in paying the rent. He further alleged in his counter that he has been carrying on the business in the suit premises as tenant since the year 1968 and the agreed rent was Rs. 100/- per month and it was Rs. 200/- per month upto the year 1982.Subsequently the father of the petitioner wanted him to vacate the premises for the purpose of remodelling the building. He asked the tenant to enhance the rent and also asked him to pay one year's rent in lump sum and accordingly a sum of Rs. 2,400/- was paid for the period from 9-12-1981 to 9-12-1982 and the same was entered in the day book of the respondent and the same has been signed by the father of the petitioner. Thereafter the father of the petitioner enhanced the rent to Rs. 400/- per month for the period from 9-12-1982 to 9-6-1983 and on that basis the father of the petitioner allowed the tenant to continue in the premises. Meanwhile the building was remodelled in the month of 1983. Thereafter the father of the petitioner started demanding the enhanced rent which the petitioner refused. But the father of the petitioner, was, somehow, trying to evict the petitioner by refusing rent. In those circumstances, he filed a suit in O.S.No. 321 of 1983 and in that suit he was depositing the rent. He further alleged that the landlord's contention that the rent was Rs. 650/- was false. He further contended that the alleged partition set up by the son was only to create an additional ground for eviction and the alleged partition deed Ex.A.1, dated 16-3-1985 was not a genuine partition deed and accordingly contended that there were no bona fides on the part of the landlord. With these allegations the parties went to the trial. The landlords examined P.Ws. 1 to 5 and got marked the documents vide Exhibits A-1 to A-4 and the tenant examined three witnesses as R.Ws. 1 to 3 and got marked Exs.B-1 to B-25. The Rent Controller on the appreciation of the entire evidence on record held that the agreed rent was only Rs. 400/- per month and not Rs. 650 / - per month as pleaded by the landlord. He further held that admittedly the father of the landlord refused to receive the rent and in those circumstances the tenant filed a suit in O.S.No. 321 of 1983 on the file of the Principal Munsif Magistrate, Tenali and went on depositing the rent in that suit as per the Court order to the knowledge of the landlord and thereafter he has deposited the rent in R.C.C.No. 24/85. He further held that instead of paying the rent to the son as per his notice the tenant went on depositing the rent in the suit in O.S.No. 321 of 1983 which deposit was to the knowledge of the son as admitted by him in his evidence. The Rent Controller consequently held that at the most that would be a case of a default but not a wilful default. He also held that the partition deed set up by the landlord is not genuine and it has been created for the purpose of this case so as to create an additional ground for the son to seek the eviction of the tenant and as such the landlord has not proved the bona fide requirement. In view of these findings the Rent Controller dismissed both the eviction petitions filed by the father in R.C.C. No. 35/83 and by the son in R.C.C.No. 24/85. So far as the eviction petition of the father was concerned it was dismissed on the ground that according to the case set up by the father himself it is the son who has become the landlord and as such there was no jurial relationship of the landlord and the tenant between the father/landlord and the tenant. The father did not challenge the judgment and decree passed in his case in R.C.C.No. 35 of 1983. However, the son only challenged the judgment and decree passed in his case i.e. in R.C.C.No.24/85.

(3.) The learned appellate Judge proceeded to consider the case with the following observations: