NON - APPEALABLE ORDERS CAN BE CHALLENGED EITHER IN REGULAR APPEAL OR IN REVISION = It is settled law that admission in a pleading cannot be allowed to be withdrawn by way of an amendment. = It held that any order permitting amendment does not affect the rights and liabilities of parties and is therefore not liable to be challenged by way of an appeal filed under Section 20 of the Act. In this view of the matter, the petitioners could not have challenged separately by way of appeal under Section 20 of the Act, the order dt 13.6.2000 in I.A.No.614 of 2000 passed by the Rent Controller permitting amendment of the respondent's counter and withdrawing the admissions made by him in the earlier counter. - The petitioners are therefore entitled to question the said order in this Civil Revision Petition filed against the orders of both the Rent Controller and the Appellate Authority. As the order of the Rent Controller allowing the amendment of counter by respondent is contrary to law, it is set aside. Consequently, I have to consider only the earlier counter dt 2.2.1998 filed by the respondent and ignore the amended counter.
PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9721
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP NO.3125 of 2008
6-3-2013
Hindu College Committee, represented by its Secretary and Correspondent, G.T.
Road, Guntur and another
Shaik Subhani
Counsel for the petitioner : Sri N. Sreerama Murthy
Counsel for the Respondents: Sri N. Subba Rao, Counsel for respondent.
<Gist :
>Head Note:
?Cases referred:
Oral Order:
Heard Sri N. Sreerama Murthy, learned counsel for the petitioners and Sri
N. Subba Rao, learned counsel for the respondent.
This Civil Revision Petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction ) Control Act, 1960 ( for short "the Act") is filed
by the petitioners challenging the order dated 4.4.2008 in RCA No.16 of 2000 of
the Principal Senior Civil Judge, Guntur confirming the order dated 24.7.2000 in
RCC No.52 of 1997 of the Rent Controller-cum-Principal Junior Civil Judge,
Guntur.
The petitioners filed the said RCC for eviction of respondent contending
that 1st petitioner is the absolute owner of the properties belonging to all the
institutions under its Management; the Hindu College is one institution under
its management; as per the bye-laws, all the properties of the Hindu College
vest in the 1st petitioner;
that 1st respondent took on lease a small room in
1986 for running soda shop on a monthly rent of Rs.250/-; he paid rent only upto
January 1994 and thereafter did not pay rents and committed wilful default in
payment of rents;
the petitioners also require the RCC schedule shop for their
personal use and occupation as they wish to have clear frontage of "Eka Dandaiah
Pantulu Hall" and for the parking space for the audience, by removing the RCC
Schedule Shop after evicting the respondent.
The respondent initially filed a counter dated 2.2.1998 admitting that he
was paying rents upto July 1997 and contending that no receipts were ever given
by the petitioners to him; that rent was Rs.250/- per month; that his father
served the petitioner-institution without any remuneration and expired later;
that as a gesture of goodwill for the services the father of the respondent has
rendered, the management of 1st petitioner permitted him to run a soda shop in
the premises.
The respondent denied that he is in arrears of rent and committed
any wilful default in payment of rent. He also contended that the alleged
requirement of the petitioner i.e. to give a face lift to "Eka Dandaiah
Panthulu Hall" is not true and that the requirement is not bonafide.
The respondent thereafter changed his counsel and filed I.A.No.614 of 2000
before the Rent Controller seeking to amend his counter by raising a plea that
there was no relationship of landlord and tenant between the respondent and the
petitioners; that only a vacant site was allotted to the father of the
respondent for the services faithfully rendered by him to the petitioners
without any remuneration; constructions over the said site were made by the
father of the respondent at his own cost and suitable structure alterations were
made by the respondent at his costs to have an opening to the road.
This amendment petition, in my view, destroys the admissions made in the earlier counter filed by the respondent on 2.2.1998 wherein the respondent had admitted that he was a tenant and he was paying rents upto the end of July 1997 and that there was no default in payment of rent.
It is settled law that
admission in a pleading cannot be allowed to be withdrawn by way of an amendment.
( See HEERALAL v. KALYAN MAL 1).
So the Rent Controller could not have allowed the amendment of counter.
The petitioners could not have
challenged it by way of appeal before the appellate authority under the Act as
such an appeal was held to be not maintainable by this Court
M. NAGENDER RAO v. B.M. LAKSHMIAH 2. In the said case,
this Court held that revision under Section
115 of CPC is not maintainable before this Court challenging an order dismissing
an application for amendment of pleadings;
that a person can file an appeal
even against the interlocutory order passed by the Rent Controller if he is so
aggrieved by that order, but such order should be one which would effect the
rights and liabilities of the parties;
but all interlocutory orders which
amount only to steps taken, towards the final adjudication cannot be challenged
in appeal.
It held that any order permitting amendment does not affect the
rights and liabilities of parties and is therefore not liable to be challenged by way of an appeal filed under Section 20 of the Act.
In this view of the
matter, the petitioners could not have challenged separately by way of appeal
under Section 20 of the Act, the order dt 13.6.2000 in I.A.No.614 of 2000
passed by the Rent Controller permitting amendment of the respondent's counter
and withdrawing the admissions made by him in the earlier counter.
The
petitioners are therefore entitled to question the said order in this Civil Revision Petition filed against the orders of both the Rent Controller and the Appellate Authority.
As the order of the Rent Controller allowing the amendment of counter by respondent is contrary to law, it is set aside. Consequently, I have to consider only the earlier counter dt 2.2.1998 filed by the respondent
and ignore the amended counter.
It is to be seen that both the Rent Controller and the Appellate Authority acted
upon the said amended counter of the respondent and came to a conclusion that
there is no jural relationship of landlord and tenant; that there is no wilful
default in payment of rent by the respondent; and petitioners failed to prove
that there is a bonafide requirement of the RCC schedule premises.
In my view, the impugned orders cannot be sustained as they are based upon the
amended counter of the respondent withdrawing the admissions made by him in the
original counter affidavit wherein he admitted that he was a tenant and he was
paying rents. In my view, the only pleading of the respondent, which has to be
considered is the one contained in original counter dt 2.2.1998 filed by him.
In the said counter, he denied that there is default in payment of rent from
January 1994 and contended that he paid rents upto the end of July 1997. But in
his evidence, he pleaded that there is no rent fixed for the shop by the
petitioners and therefore he need not pay any rent. Thus, his evidence is
inconsistent with his pleadings and he failed to establish that he paid rents
upto the end of July 1997 as contended in the counter dt 2.2.1998.
Sri N. Subba Rao, counsel for the respondent however contended that there was an
admission by the witness for the petitioners as P.W.1 in his cross examination
that there is no rent payable for the RCC schedule premises by the respondent or
his father. I have gone through the evidence of P.W.1. In his cross
examination, there is a reference to a house within the premises of the
petitioners-college which was leased to the father of the respondent and it is
stated by P.W.1 that no rent is being paid since beginning even by the
respondent's father. With regard to the RCC schedule premises no doubt P.W.1
stated that father of the respondent did not pay any rent to the petitioner but
he has specifically stated that the respondent paid rents upto January 1994.
Thus, there is no such admission by the P.W.1 in his evidence that there was no
rent need be paid by the respondent to the petitioners in respect of the RCC
schedule shop.
Both the Rent Controller and the Appellate Authority have misdirected themselves by taking into account the amended counter of the respondent raising the plea of absence of jural relationship of landlord and tenant and have erroneously came to the conclusion there is no wilful default in payment of rent.
In my view, the findings of the Rent Controller and the Appellate
Authority cannot be sustained in the light of the pleadings of the respondent in
the original counter dt 2.2.1998 about the existence of landlord and tenant
relationship between the petitioners and the respondent.
As the respondent failed to adduce any evidence in support of his pleading that he had paid rents upto July 1997 and on the other hand stated in his evidence that no rent is fixed at all for the shop in his occupation, I am of the view that the petitioners have made out a case for eviction of the respondent on the ground of wilful default in payment of rent by the respondent since January
1994. In this view of the matter, I am not inclined to go into the issue as to whether the RCC schedule premises/shop is also bonafidely required by the petitioners.
For the above reasons, the Civil Revision Petition is allowed
the order dt
4.4.2008 in RCA No.16 of 2000 of the Principal Senior Civil Judge, Guntur
and
the order dt 24.7.2000 in RCC No.52 of 1997 of the Rent Controller-cum-
Principal Junior Civil Judge, Guntur are set aside;
the respondent is directed
to vacate the RCC schedule premises and deliver vacant possession thereof to
the petitioners within four months from today;
respondent shall also pay all
arrears of rent @ Rs.250/- per month from January 1994 till he vacates the
premises within a period of four weeks from the date of receipt of a copy of
this order and shall also file an undertaking before the Rent Controller-cum-
Principal Junior Civil Judge, Guntur that he would vacate and handover vacant
possession of the RCC schedule shop to the petitioners on or before 5th July
2013.
In default of payment of arrears of rent or of filing undertaking as
directed above, the petitioners shall be at liberty to execute the order of
eviction forthwith.
JUSTICE M.S. RAMACHANDRA RAO
Dt: 6.3.2013
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP NO.3125 of 2008
6-3-2013
Hindu College Committee, represented by its Secretary and Correspondent, G.T.
Road, Guntur and another
Shaik Subhani
Counsel for the petitioner : Sri N. Sreerama Murthy
Counsel for the Respondents: Sri N. Subba Rao, Counsel for respondent.
<Gist :
>Head Note:
?Cases referred:
Oral Order:
Heard Sri N. Sreerama Murthy, learned counsel for the petitioners and Sri
N. Subba Rao, learned counsel for the respondent.
This Civil Revision Petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction ) Control Act, 1960 ( for short "the Act") is filed
by the petitioners challenging the order dated 4.4.2008 in RCA No.16 of 2000 of
the Principal Senior Civil Judge, Guntur confirming the order dated 24.7.2000 in
RCC No.52 of 1997 of the Rent Controller-cum-Principal Junior Civil Judge,
Guntur.
The petitioners filed the said RCC for eviction of respondent contending
that 1st petitioner is the absolute owner of the properties belonging to all the
institutions under its Management; the Hindu College is one institution under
its management; as per the bye-laws, all the properties of the Hindu College
vest in the 1st petitioner;
that 1st respondent took on lease a small room in
1986 for running soda shop on a monthly rent of Rs.250/-; he paid rent only upto
January 1994 and thereafter did not pay rents and committed wilful default in
payment of rents;
the petitioners also require the RCC schedule shop for their
personal use and occupation as they wish to have clear frontage of "Eka Dandaiah
Pantulu Hall" and for the parking space for the audience, by removing the RCC
Schedule Shop after evicting the respondent.
The respondent initially filed a counter dated 2.2.1998 admitting that he
was paying rents upto July 1997 and contending that no receipts were ever given
by the petitioners to him; that rent was Rs.250/- per month; that his father
served the petitioner-institution without any remuneration and expired later;
that as a gesture of goodwill for the services the father of the respondent has
rendered, the management of 1st petitioner permitted him to run a soda shop in
the premises.
The respondent denied that he is in arrears of rent and committed
any wilful default in payment of rent. He also contended that the alleged
requirement of the petitioner i.e. to give a face lift to "Eka Dandaiah
Panthulu Hall" is not true and that the requirement is not bonafide.
The respondent thereafter changed his counsel and filed I.A.No.614 of 2000
before the Rent Controller seeking to amend his counter by raising a plea that
there was no relationship of landlord and tenant between the respondent and the
petitioners; that only a vacant site was allotted to the father of the
respondent for the services faithfully rendered by him to the petitioners
without any remuneration; constructions over the said site were made by the
father of the respondent at his own cost and suitable structure alterations were
made by the respondent at his costs to have an opening to the road.
This amendment petition, in my view, destroys the admissions made in the earlier counter filed by the respondent on 2.2.1998 wherein the respondent had admitted that he was a tenant and he was paying rents upto the end of July 1997 and that there was no default in payment of rent.
It is settled law that
admission in a pleading cannot be allowed to be withdrawn by way of an amendment.
( See HEERALAL v. KALYAN MAL 1).
So the Rent Controller could not have allowed the amendment of counter.
The petitioners could not have
challenged it by way of appeal before the appellate authority under the Act as
such an appeal was held to be not maintainable by this Court
M. NAGENDER RAO v. B.M. LAKSHMIAH 2. In the said case,
this Court held that revision under Section
115 of CPC is not maintainable before this Court challenging an order dismissing
an application for amendment of pleadings;
that a person can file an appeal
even against the interlocutory order passed by the Rent Controller if he is so
aggrieved by that order, but such order should be one which would effect the
rights and liabilities of the parties;
but all interlocutory orders which
amount only to steps taken, towards the final adjudication cannot be challenged
in appeal.
It held that any order permitting amendment does not affect the
rights and liabilities of parties and is therefore not liable to be challenged by way of an appeal filed under Section 20 of the Act.
In this view of the
matter, the petitioners could not have challenged separately by way of appeal
under Section 20 of the Act, the order dt 13.6.2000 in I.A.No.614 of 2000
passed by the Rent Controller permitting amendment of the respondent's counter
and withdrawing the admissions made by him in the earlier counter.
The
petitioners are therefore entitled to question the said order in this Civil Revision Petition filed against the orders of both the Rent Controller and the Appellate Authority.
As the order of the Rent Controller allowing the amendment of counter by respondent is contrary to law, it is set aside. Consequently, I have to consider only the earlier counter dt 2.2.1998 filed by the respondent
and ignore the amended counter.
It is to be seen that both the Rent Controller and the Appellate Authority acted
upon the said amended counter of the respondent and came to a conclusion that
there is no jural relationship of landlord and tenant; that there is no wilful
default in payment of rent by the respondent; and petitioners failed to prove
that there is a bonafide requirement of the RCC schedule premises.
In my view, the impugned orders cannot be sustained as they are based upon the
amended counter of the respondent withdrawing the admissions made by him in the
original counter affidavit wherein he admitted that he was a tenant and he was
paying rents. In my view, the only pleading of the respondent, which has to be
considered is the one contained in original counter dt 2.2.1998 filed by him.
In the said counter, he denied that there is default in payment of rent from
January 1994 and contended that he paid rents upto the end of July 1997. But in
his evidence, he pleaded that there is no rent fixed for the shop by the
petitioners and therefore he need not pay any rent. Thus, his evidence is
inconsistent with his pleadings and he failed to establish that he paid rents
upto the end of July 1997 as contended in the counter dt 2.2.1998.
Sri N. Subba Rao, counsel for the respondent however contended that there was an
admission by the witness for the petitioners as P.W.1 in his cross examination
that there is no rent payable for the RCC schedule premises by the respondent or
his father. I have gone through the evidence of P.W.1. In his cross
examination, there is a reference to a house within the premises of the
petitioners-college which was leased to the father of the respondent and it is
stated by P.W.1 that no rent is being paid since beginning even by the
respondent's father. With regard to the RCC schedule premises no doubt P.W.1
stated that father of the respondent did not pay any rent to the petitioner but
he has specifically stated that the respondent paid rents upto January 1994.
Thus, there is no such admission by the P.W.1 in his evidence that there was no
rent need be paid by the respondent to the petitioners in respect of the RCC
schedule shop.
Both the Rent Controller and the Appellate Authority have misdirected themselves by taking into account the amended counter of the respondent raising the plea of absence of jural relationship of landlord and tenant and have erroneously came to the conclusion there is no wilful default in payment of rent.
In my view, the findings of the Rent Controller and the Appellate
Authority cannot be sustained in the light of the pleadings of the respondent in
the original counter dt 2.2.1998 about the existence of landlord and tenant
relationship between the petitioners and the respondent.
As the respondent failed to adduce any evidence in support of his pleading that he had paid rents upto July 1997 and on the other hand stated in his evidence that no rent is fixed at all for the shop in his occupation, I am of the view that the petitioners have made out a case for eviction of the respondent on the ground of wilful default in payment of rent by the respondent since January
1994. In this view of the matter, I am not inclined to go into the issue as to whether the RCC schedule premises/shop is also bonafidely required by the petitioners.
For the above reasons, the Civil Revision Petition is allowed
the order dt
4.4.2008 in RCA No.16 of 2000 of the Principal Senior Civil Judge, Guntur
and
the order dt 24.7.2000 in RCC No.52 of 1997 of the Rent Controller-cum-
Principal Junior Civil Judge, Guntur are set aside;
the respondent is directed
to vacate the RCC schedule premises and deliver vacant possession thereof to
the petitioners within four months from today;
respondent shall also pay all
arrears of rent @ Rs.250/- per month from January 1994 till he vacates the
premises within a period of four weeks from the date of receipt of a copy of
this order and shall also file an undertaking before the Rent Controller-cum-
Principal Junior Civil Judge, Guntur that he would vacate and handover vacant
possession of the RCC schedule shop to the petitioners on or before 5th July
2013.
In default of payment of arrears of rent or of filing undertaking as
directed above, the petitioners shall be at liberty to execute the order of
eviction forthwith.
JUSTICE M.S. RAMACHANDRA RAO
Dt: 6.3.2013
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