The Commissioner of Income Tax ( Central ) vs. Aditya Music ( Ltd)

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

Civil Revision Petition No.164 of 2013

ORDER:

This Civil Revision Petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control, Act, 1960 (‘the Act’, for brevity) by the appellant/tenant of the schedule premises is directed against the order and decretal order dated 12.12.2012 of the learned appellate authority under the Act-cum Principal Senior Civil Judge, Vijayawada passed in RCCMA.no.32 of 2012 whereby the said learned appellate authority had confirmed the decree and decretal order dated 13.12.2011 of the learned Rent Controller- cum-IV Additional Junior Civil Judge, Vijayawada passed in RCC.no.104 of 2007. 2. I have heard the submissions of the learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlord. I have perused the material record including the additional material papers. 3. The introductory facts are as follows: 3.1 The landlord, having pleaded that he had purchased the schedule property under seven registered sale deeds, all dated 04.12.2006 from the previous owners, that is, the previous landlords of the revision petitioner/tenant herein, had inter alia claimed that the tenancy of the present tenant/revision petitioner herein was attorned to him by the previous landlords, that is, the vendors of the landlord/respondent herein. Having so pleaded, the respondent/landlord had further claimed that in view of the purchase made by him and the attornment of tenancy, there is landlord and tenant jural relationship between the parties herein and had sought eviction of the revision petitioner/tenant on the grounds viz., bona fide personal requirement for the proposed hotel business viz., business in ‘Fast Foods’ of the landlord; willful default in payment of rents; denial of title by the tenant, nuisance and acts of waste and use of the premises let out for a purpose

other than the purpose for which it is let out. 3.2 The tenant having filed his counter had resisted the eviction petition, denied the sale deeds and the sale transactions between the respondent/landlord and the previous landlords/owners of the property had inter alia contended as follows: ‘He is running business in the schedule property since a long time, which is in five parts and which belonged to five individuals namely J.M. Patel, Rameelaben Patel, Narendrakumar J. Patel, Manoj Kumar J. Patel and Santhilal J. Patel. In the month of June, 2006 when the said five individuals tried to sell away the property in five parts to develop their family business, the revision petitioner/tenant had entered into agreements of sale with J. M. Patel, Narendrakumar J. Patel and Santhilal J. Patel for a valid consideration of Rs.5.00 lakhs payable to each of the said three landlords and had paid Rs.2.00 lakhs in the month of June, 2006, Rs.1.00 lakh in the month of August, 2006 and finally Rs.1.00 lakh in the month of November 2006 to each of the said landlords towards parts of sale considerations. With the remaining two owners i.e., Rameelaben Patel and Manoj Kumar J. Patel, one Vikram Nageswara Rao had entered into agreements of sale for the purchase of their parts of the property for a consideration of Rs.5.00 lakhs each and had paid Rs.2.00 lakhs in the month of June, 2006, Rs.1.00 lakh in the month of August, 2006 and finally Rs.1.00 lakh in the month of November 2006 to each of the said landlords/vendors towards parts of sale considerations under the said agreements of sale. The said owners/the previous landlords used tactics to avoid the completion of the sale transactions in favour of the agreement holders, i.e., the tenant/revision petitioner herein and the said Vikram Nageswara Rao. Therefore, the agreements holders had issued registered notices through their counsel demanding the said individual owners to perform their parts of the contracts and complete the execution of the sale deeds in favour of the agreements holders. Having received the notices, the owners/previous landlords had issued replies with false contents. The said owners/ previous landlords were instigated by one Ilapuram Venkaiah and others due to political rivalry between them. Consequently, the previous landlords had committed

defaults. Hence, the revision petitioner/tenant and the said Vikram Nageswara Rao had filed individual suits against the individual landlords for specific performance of the said agreements of sale. The suits viz., OS.no.869 of 2007 on the file of the Court of the learned II Additional Senior Civil Judge, Vijayawada filed against J.M. Patel; OS.no.872 of 2007 on the file of the Court of the learned I Additional Senior Civil Judge, Vijayawada filed against Narendra Kumar J. Patel; and, OS.no.870 of 2007 on the file of the Court of the learned III Additional Senior Civil Judge, Vijayawada filed against Santhilal J. Patel by the revision petitioner/tenant; and, OS.no.873 of 2007 on the file of the Court of the learned II Additional Senior Civil Judge, Vijayawada filed against Manoj Kumar K. Patel; and, OS.no.871 of 2007 on the file of the Court of the learned Principal Senior Civil Judge, Vijayawada filed against Rameelaben Patel by Vikram Nageswara Rao are all pending. There is no attornment of tenancy to the present landlord/respondent herein. There is no jural relationship of landlord and tenant between the parties herein. Therefore, the petition for eviction is liable to be dismissed.’ In the additional counter the revision petitioner/tenant had further contended as follows: ‘He had deposited rents to the credit of RCC.no.411 of 1996 from April, 1995 onwards and he had also deposited rents subsequent to the decree dated 16.10.1998 till May, 2006 @ Rs.700/- per month for the part of the schedule property which belongs to Rameelaben Patel. For the remaining part of the schedule property which belongs to J.M. Patel, Narendera Kumar J. Patel; Manoj Kumar Patel and Santilal Patel, the respondent had paid Rs.7,300/- per month towards rent. The allegations of the respondent/landlord that the revision petitioner/tenant’s tenancy with the previous owners in the respect of the schedule property is oral and that the tenancy is monthly tenancy and that the initial rent was Rs.1,500/- per month and later it was enhanced to Rs.2,500/- per month are utter false. The allegation that this revision petitioner/tenant has committed wilful default in payments of rents is false. This revision petitioner/tenant had purchased the property from the previous owners/landlords and he is having a better right and interest than the respondent/landlord herein. The respondent/landlord is having no right to seek eviction of the revision petitioner/tenant. RCC.no.50

of 1997 was filed for restoration of amenities like electricity supply, but, not for deposit of rents whereas RCC.no.411 of 1996 was filed for deposit of rents. Both the said RCCs were decreed in favour of the revision petitioner/tenant. The plea of bona fide personal requirement taken by the respondent/landlord is false. The respondent/landlord is not entitled to seek eviction on the grounds alleged in the petition. The grounds urged are false.’ 3.3 Based on the above pleadings, the learned Rent Controller had famed the following points for consideration: 1. Whether the petitioner is entitled for eviction of the respondent on the ground of willful default? 2. Whether the respondent denied the bonafide title of the petitioner? 3. Whether the petitioner is entitled for personal occupation and whether the respondent committed nuisance in the petition schedule property and acts of waste? 3.4 At the time of enquiry before the learned Rent Controller, the respondent/landlord was examined as PW1 and exhibits A1 to A14 were marked on his side. On the side of the revision petitioner/tenant, RWs1 to 6 were examined and exhibits B1 to B57 were marked. CWs 1 and 2 were also examined and exhibit X1 was also marked. 3.5 The learned Rent Controller, having answered all the points in favour of the respondent/landlord had ordered eviction of the revision petitioner/tenant from the schedule property. As already noted, the revision petitioner/tenant’s appeal in RCCMA.no.32 of 2012 was dismissed by the Court below confirming the orders of the learned Rent Controller by granting two months time to vacate and deliver possession of the schedule property to the respondent/landlord. Therefore, the aggrieved revision petitioner/tenant is before this Court. 4. In the grounds of revision, it is urged as under: The Courts below ought to have seen that the revision petitioner/tenant is paying a monthly rent of Rs.8,000/- in respect of the schedule premises and as such the provisions of the Rent Control Act have no application and

the learned Rent Controller and the appellate authority under the Act have no jurisdiction to entertain the eviction proceedings and order eviction of the revision petitioner/tenant. The documents exhibited, particularly, exhibits B32 to B57 clinchingly establish that the monthly rent is much higher than the quantum of rent as pleaded by the respondent/landlord. The Courts below adopted a lopsided approach and gave much importance to the minor inconsistencies in the depositions and made erroneous observations on the aspects concerning quantum of rent and the jural relationship and the denial of title. The findings of the Courts below that the monthly rent of Rs.2,500/- per month has to be taken into account for determining the jurisdiction of the Rent Control Courts is misconceived. The Courts below ought to have seen that the respondent/landlord is not a bona fide purchaser and that there is no jural relationship between the parties and that, therefore, the Courts below have no jurisdiction to entertain the petition for eviction. The Courts below ought to have seen that as early as in the year 2007 itself, the revision petitioner/tenant in his reply notice has categorically pleaded that he is not a tenant under the respondent/landlord. The Courts below ought to have seen that the purchasers from the previous owners/landlords including the revision petitioner/tenant filed suits for specific performance of agreements of sale executed independently by the original owners/landlords and the said suits for specific performance are pending and that, therefore, the seven sale deeds obtained by the present respondent/landlord are void. The Courts below ought to have seen that after this revision petitioner/tenant had entered into the agreements of sale with some of the owners/previous landlords, his possession as a tenant was transformed into the possession of an agreement holder and, therefore, by the date of filing of this instant eviction petition by the present landlord/respondent, he is not a tenant in the schedule premises. The findings of the Courts below that the revision petitioner/tenant had intentionally failed to pay the rents either to the previous landlords or the present landlord/respondent even after receiving the notice under exhibit A8 and that therefore, the revision petitioner/tenant is guilty of non payment of rents and is a willful defaulter are erroneous and incorrect. The Courts below had erroneously accepted the case of the landlord/respondent herein in

regard to bona fide personal requirement though the claim is not bona fid; and the Courts below had failed to take note of the relative hardship while considering the said aspect. The Courts below ought to have seen that the landlord/respondent herein had failed to establish that he is not having any other vacant non residential premises in his possession and that in the absence of such proof, the Courts below ought not to have ordered eviction on the ground of bona fide personal requirement of the landlord/respondent. 4.1 The learned counsel for the revision petitioner/tenant while reiterating the grounds urged had contended that the Courts below have no jurisdiction and that the provisions of the Act have no application and that there is no jural relationship between the parties to the lis and that, therefore, the orders passed by the Courts below are unsustainable and are liable to be set aside. In the alternative, he had contended that even assuming that there is landlord and tenant relationship and that the Courts below had jurisdiction, still, the respondent/landlord could not establish any of the grounds for ordering eviction and that the Courts below had erroneously recorded findings against the revision petitioner/tenant holding that he is a willful defaulter and that the plea of bona fide personal requirement of the landlord/respondent is established. 5. On the other hand, the learned counsel for the respondent/landlord while supporting the concurrent findings in the orders of the Courts below had contended that while exercising revisional jurisdiction, this Court does not generally interfere with the concurrent findings of the Courts below and that in the case on hand, the Courts below have considered the facts correctly and the evidence in proper perspective and recorded well reasoned findings and that it is not a fit case where interference is called for while exercising revisional jurisdiction. 6.1 Coming first to the aspect of jural relationship between the parties and the jurisdiction of the Courts below, it is to be noted that exhibits A1 to A7 are the seven registered sale deeds whereunder the respondent/landlord had purchased the petition schedule building from the previous owners/the

previous landlords of the revision petitioner/tenant herein. The said documents, all dated 04.12.2006, lay bare that the respondent/landlord herein had purchased the petition schedule property for valuable consideration. The landlord/respondent herein having contended that the tenant/revision petitioner herein was informed about the purchase of the building on 04.12.2006 by the landlord/respondent herein had exhibited A8 – the letter dated 17.05.2007. The same on a perusal would show that the landlord/respondent herein intimated the revision petitioner/tenant about the aforesaid sale transactions under the seven sale deeds in his favour and the attornment of tenancy and the revision petitioner’s/tenant’s knowledge of the same. Exhibit A9 is the reply dated 24.06.2007 got issued by the revision petitioner/tenant through an advocate. In the said reply notice, the revision petitioner/tenant had denied that he is a tenant under the respondent/landlord and had pleaded that there is no landlord and tenant relationship between the parties and that the revision petitioner/tenant had entered into agreements of sale with J. M. Patel, Narendera Kumar; K. Patel; and, Santhilal J. Patel and that one Vikram Nageswara Rao had entered into sale agreements with Rameelaben Patel and Manoj Kumar J. Patel and that suits for specific performance were filed by the two agreements holders against the said owners/vendors under the said agreements and that the said suits are pending and that the sale deeds in favour of the landlord/respondent herein are void. Thus, it is evident that, by a letter dated 17.05.2007 the landlord/ respondent herein had informed the revision petitioner/tenant about the purchases made by him under seven sale deeds. Hence, the revision petitioner/tenant cannot be heard to say that he is not aware of the purchases made by the respondent/landlord from the owners/previous landlords of the respondent/tenant. One of the vendors of the respondent/landlord was examined as CW1. In his examination in chief, he had deposed that he had sold the schedule property to the respondent/landlord on 04.12.2006. Per contra, the only claim of the revision petitioner/tenant is that he had purchased parts of the petition schedule property from three of the previous landlords/owners whereas one Vikram Nageswara Rao had purchased the remaining portions from the other two owners. In the reply letter under exhibit

A9 referred to supra, the details of agreements like considerations and advance considerations, if any, paid are not mentioned. In the original counter filed by the revision petitioner/tenant he did not specifically plead that after he had entered into agreements of sale in respect of the parts of the property with some of the previous landlords the tenancy has come to an end and that his possession as a tenant has transformed to that of an agreement holder. Unless the tenancy has come to an end by virtue of the agreements of sale allegedly entered into between the revision petitioner/tenant and some of his previous landlords, the contention that the revision petitioner/tenant is no longer a tenant of the petition schedule property cannot be countenanced. Since the suits for specific performance filed by the revision petitioner/tenant and the other purchaser are pending, they both cannot claim right, title and interest in the property whereas the respondent/landlord herein having purchased under seven regular registered sale deeds and having examined one of his vendors as CW1, had substantiated his claim of ownership and also the attornment of tenancy. Therefore, the findings recorded by the Courts below on the appreciation of the evidence brought on record that there is jural relationship of landlord and tenant between the landlord/respondent herein and the revision petitioner/tenant are justifiable in the facts and circumstances of the case. 6.2 Coming to the quantum of rent, both the Courts on appreciation of pleadings, the facts and the evidence brought on record, had recorded concurrent finding of fact that the rent is less than Rs.3,500/- per month and that since the schedule property is situate in an area covered by a Municipal Corporation, the provisions of the Rent Control Act are applicable and that the Courts below are having jurisdiction to entertain the rent control case. The respondent/landlord had specifically pleaded that the initial monthly rent was Rs.1,500/- and later it was enhanced to Rs.2,500/- per month. In his Counter the tenant/revision petitioner herein did not deny the said pleading or make a whisper about the quantum of rent and the issue of lack of jurisdiction. Whereas in the additional counter, the revision petitioner/tenant had urged that for part of the premises the monthly rent is Rs.700/- and for the

remaining part the monthly rent is Rs.7,300/- per month and that, therefore, the total monthly rent is Rs.8,000/-. However, he did not produce any reliable evidence in support of his said contentions. Admittedly, the revision petitioner/tenant did not pay monthly rents to the landlord/respondent herein after the landlord/ respondent herein purchased the petition schedule property under seven sale deeds, all dated 04.12.2006. Therefore, the respondent/landlord cannot be expected to produce any documentary evidence in that regard. PW1 also deposed in his cross examination that he does not know whether the revision petitioner/tenant was paying the monthly rent @ Rs.8,000/- per month. RW1 had stated that there are no rent receipts to show the payments of rents made by him. RW1 specifically stated in his cross examination that he is submitting income tax returns since 2004 and that he is showing in the returns that the rent is Rs.7,000/- per month. From May, 2006 onwards, he is not paying rents either to the vendors of the respondent/landlord or the landlord/respondent. Though some day books, ledgers, the tax audit report, the copies of IT returns are filed and RW5 who was said to have filed the income tax returns of Mandakini Bar and Restaurant for the assessment year 2006-07 was examined and some evidence was sought to be introduced that the rent was more than Rs.2,500/- the Court below having analytically examined the said evidence and having recorded reasons did not accept the said evidence as the said evidence is not supported by pleadings and was adduced belated. Therefore, the Courts below had held that the said documents have no probative value. On the other hand, CW1, J.M. Patel one of the vendors of the previous landlords had deposed that they had issued notice demanding the revision petitioner/tenant to pay the rent @ Rs.2,500/- per month each towards each sharer’s share of rent. If that evidence is taken into consideration, the total rent works out to Rs.13,000/- per month. That is not the case of the either of the parties herein. The specific case of the revision petitioner/tenant is that the rent payable to the portion of Rameelaben Patel is Rs.700/- and that he is depositing the said rent. Therefore, in the absence of establishing the plea that the monthly rent is Rs.8,000/- and in view of the inconsistency in the evidence adduced by the tenant to prove the quantum of rent, the Courts below having rejected the

contention of the revision petitioner/tenant had held that the monthly rent is Rs.2,500/- per month. Further, the Court below in the concluding paragraph of the discussion under point no.2 in regard to quantum of rent had held that even if the rent that is being paid at the rate of Rs.700/- per month to the portion of Rameelaben is also added, the total rent would work out to Rs.3,200/- per month and that, therefore, the provisions of the Rent Control Act are applicable and the Rent Controller has got jurisdiction to entertain the petition for eviction. 6.3 Be it noted that there is one more facet to be considered on this aspect of quantum of rent and the jurisdictions of the Rent Controller and the appellate authority under the Act. In a previous round of litigation between the parties, i.e., in the execution proceedings that arose from the very same proceedings in respect of the same subject matter, the respondent/tenant had raised the issue of lack of jurisdiction of the Rent Controller and the appellate authority to entertain the eviction petition and to order eviction. In this regard, the facts, which are necessary, for consideration, in brief, are as follows: - ‘After the RCC was decreed on 13.12.2011 and the said decree was confirmed by the Court below in the appeal, the respondent/landlord had filed EP.no.9 of 2013 against the revision petitioner/tenant for execution of the eviction order and obtaining vacant possession of the petition schedule property. In that execution proceeding, the revision petitioner/tenant had filed an application under Sections 47 and 151 of the Code of Civil Procedure to dismiss the EP on the ground that the Rent Control Court is not having jurisdiction. The Court of execution had rejected the said application by an order dated 02.04.2015. Assailing the said order, the revision petitioner/tenant herein had filed the CRP.no.1582 of 2015 before this Court. In the said CRP this Court, had noted that the contentions and objections raised by the revision petitioner/tenant in the execution petition were earlier raised by way of defence in RCC.no.104 of 2007 before the Rent Controller and that a finding was recorded on the said aspect and that the same was confirmed by the appellate authority while dismissing the appeal/RCCCMA.no.32 of 2012 on 12.12.2011 and that the questions of

jurisdiction and in regard to the quantum of rent were already adjudicated on the original side and were confirmed by the appellate authority. Having taken note of the said concurrent findings, this Court has held that the same questions cannot be permitted to be raised in the execution proceedings and accordingly this Court had dismissed the revision filed by the revision petitioner/tenant herein.’ Therefore, this Court in the aforementioned CRP confirmed the findings in regard to quantum of rent and jurisdiction of the Rent Controller and the appellate authority for entertaining the eviction petition. In the well considered view of this Court there is no reason to reach a different finding in this CRP. In view of the said finding, which has become final, it is not open to the revision petitioner/tenant to again raise the issues in regard to jurisdiction and quantum of rent before this Court in this CRP. 6.4 Dealing with the aspect of bona fide personal requirement, the respondent/landlord has specifically stated that he is not having any other non residential premises of his own in Vijayawada town and that he requires the schedule premises to start his business in Fast Foods and that he intends to start a Fast Food Centre in the schedule premises. The evidence brought on record would show that the respondent/landlord has got sufficient financial status. Exhibit A13 - the experience certificate issued by the Proprietor of Hotel Ilapuram to the respondent/landlord on a perusal would show that he has got long and sufficient experience in the hotel business. It is borne out by record that the respondent/landlord has been working in hotel Ilapuram which belongs to his father. Hence the concurrent finding recorded based on the evidence on record in regard to bona fide personal requirement needs no interference by this Court while exercising revisional jurisdiction. 6.5 Coming to the ground of willful default, admittedly, the revision petitioner/tenant did not pay rents either to the previous landlords/owners or the respondent/landlord herein after the purchase of the property under seven sale deeds dated 04.12.2006 by the respondent/landlord. The revision petitioner/tenant could not establish that after he had entered into agreements of sale with some of the previous landlords/owners, the tenancy has come to an end and that his possession as a tenant transformed into that of an

agreement holder. In the absence of such transformation and in the absence of the tenancy coming to an end, the revision petitioner/tenant is bound to pay rents either to the previous landlords/owners or the respondent/landlord herein. Having regard to these aspects adverted to supra, both the courts below had held that the respondent/landlord had sufficiently established that the revision petitioner/tenant is a wilful defaulter in payment of rents. This Court had already approved the findings of the Courts below that there is jural relationship between the parties and that the possession of the revision petitioner/tenant in the petition schedule property is only that of a tenant insofar as the present lis. 7. Viewed thus, this Court finds that the well reasoned findings of the Courts below that the revision petitioner/tenant is a willful defaulter do not warrant interference. 8. Be it noted that on the two points regarding acts of waste and nuisance, the appellate authority had recorded findings in favour of the revision petitioner/tenant and the respondent/landlord did not seriously raise any contentions for reversal of the said findings. Therefore, there is no need to dilate on the said aspects. 9. In view of the fact that this Court held that there is jural relationship and that the tenancy is attorned and that the possession of the revision petitioner/tenant in the schedule property is that of a tenant and that he had committed willful default in payment of rents and that the respondent/landlord had established that he requires the premises bona fide for his proposed business in Fast Foods, it follows that the respondent/landlord is entitled to seek eviction of the revision petitioner/tenant from the schedule property. Be it noted that since the revision petitioner/tenant is not having a sale deed in his favour in respect of even a portion of the petition schedule property, he cannot be heard to say that he is entitled to remain in possession till the final disposal of the suits for specific performance which are stated to be pending. 10. Viewed thus, this Court finds that there are no impediments for ordering eviction by confirming the orders of the Court below.