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Tuesday, August 19, 2014

The provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal it does not authorise any lacunae or gaps in evidence to be filled up. (N. Kamalam v. Ayyasamy ). The appellate court should not, ordinarily, allow new evidence to be adduced in order to enable a party to raise a new point in appeal. (Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ; and Ibrahim Uddin30). The requirement of Order 41 Rule 27 CPC must be limited to those cases where it is found necessary to obtain such evidence for enabling the Court to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where, even without such evidence, it can pronounce judgment in a case. (Lala Pancham26; Ibrahim Uddin30; Lala Pancham26; N. Kamalam32). =CIVIL REVISION PETITION NO.735 OF 2014 08-08-2014 K. Chengalraya Chetty (died) and others..Petitioners Smt.Gomatheeswari.. Respondent = 2014-Aug.Part-http://judis.nic.in/judis_andhra/filename=11807

The provisions
of Order 41 Rule 27 have not been engrafted in the Code so as to
patch up the weak points in the case and to fill up the omission in
the court of appeal  it does not authorise any lacunae or gaps in
evidence to be filled up. (N. Kamalam v. Ayyasamy ). The
appellate court should not, ordinarily, allow new evidence to be
adduced in order to enable a party to raise a new point in appeal.
(Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ;
and Ibrahim Uddin30).  The requirement of Order 41 Rule 27 CPC
must be limited to those cases where it is found necessary to
obtain such evidence for enabling the Court to pronounce
judgment. This provision does not entitle the appellate court to let
in fresh evidence at the appellate stage where, even without such
evidence, it can pronounce judgment in a case. (Lala Pancham26;
Ibrahim Uddin30; Lala Pancham26; N. Kamalam32).  

2014-Aug.Part-http://judis.nic.in/judis_andhra/filename=11807

THE HONBLE SRI JUSTICE RAMESH RANGANATHAN          

CIVIL REVISION PETITION NO.735 OF 2014  

08-08-2014

K. Chengalraya Chetty (died) and others..Petitioners

Smt.Gomatheeswari.. Respondent  

Counsel for the petitioners: Smt. Sundari R Pisupati

Counsel for respondent:Sri T.C. Krishnan

<GIST:

>HEAD NOTE:  

?Citations:

1)      (2014) 2 SCC 788
2)      2010 (1) ALD 366
3)      1995(2) ALT 61
4)      2014 (1) ALT 51 (SC)
5)      (2012) 1 SCC 656)
6)      1994(3) ALT 461
7)      (1995) 6 SCC 580
8)      (1990) 4 SCC 286
9)      (1987) 2 SCC 555
10)     AIR 1966 SC 735
11)     (2005) 5 SCC 784
12)     AIR 1960 SC 100
13)     (2013) 12 SCC 17
14)     (2012) 8 SCC 516
15)     (2009) 2 SCC 75
16)     (1979) 4 SCC 790
17)     (2000) 6 SCC 394
18)     (2006) 5 SCC 545
19)     AIR 1991 SC 91
20)     2007(4) ALT 472
21)     (2003) 4 SCC 161
22)     (2003) 10 SCC 653
23)     AIR 1930 P.C. 57
24)     AIR 1966 SC 1861
25)     1995 Supp (4) SCC 422
26)     AIR 1965 SC 1008
27)     AIR 1963 SC 1526
28)     (1975) 3 SCC 698
29)     (1979) 2 SCC 601
30)     (2012) 8 SCC 148
31)     (2008) 3 SCC 120
32)     (2001) 7 SCC 503
33)     (1978) 2 SCC 493
34)     (2004) 10 SCC 779
35)     AIR 1957 SC 912
36)     AIR 1969 SC 101
37)     (1987) 1 SCC 227
38)     AIR 1980 SC 446
39)     (2006) 9 SCC 772
40) (2011) 7 SCC 589


THE HONBLE SRI JUSTICE RAMESH RANGANATHAN          
CIVIL REVISION PETITION NO.735 OF 2014  

ORDER:
        The respondent herein, a hapless woman deserted by her
husband and whose sons are eking out their livelihood pushing
carts on the railway platform, has been fighting a lonely and
relentless battle, for the past more than twelve years, to regain
possession of a small shop in Chittoor Bus Stand from the
petitioners herein who have invoked the jurisdiction of this Court,
under Section 22 of the A.P. Buildings (Lease, Rent and Eviction)
Control Act, 1960, (hereinafter called the Act), against the order
of the Principal Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006
dated 02.12.2013 confirming the order passed by the Principal
Junior Civil Judge-cum-Rent Controller, Chittoor in R.C.C.No.8 of
2002 dated 11.09.2006.
      The deceased first petitioner (father of petitioners 2 to 5) is
the sole respondent in R.C.C.No.8 of 2002.  The sole respondent
herein is the petitioner in R.C.C.No.8 of 2002 which was filed
under Section 10 of the Act seeking eviction of the deceased first
petitioner from the petition schedule shop along with other
incidental reliefs.  Parties shall hereinafter be referred to as they
are arrayed in R.C.C.No.8 of 2002.  R.C.C.No.8 of 2002 was
allowed on 11.09.2006 and the respondent was directed to vacate
and deliver vacant possession of the petition schedule shop within
two months from the date of the order. The Rent Controller held
that, if he failed to vacate and deliver possession within two
months from the date of the order, it was open to the petitioner to
eject him under due process of law.  After R.C.C.No.8 of 2002 was
allowed by order dated 11.09.2006, the first petitioner herein
(respondent in R.C.C.No.8 of 2002) died and his children preferred
R.C.A.No.2 of 2006 before the Principal Senior Civil Judge,
Chittoor. During the pendency of R.C.A.No.2 of 2006, petitioners 2
to 5 herein filed I.A.No.204 of 2009 requesting the Court below to
receive the petition with attached documents.  The Appellate
Court, by its order in R.C.A.No.2 of 2006 dated 02.12.2013,
dismissed the appeal confirming the order of the Rent Controller in
R.C.C.No.8 of 2002 dated 11.09.2006.  The appellants were
granted three months time to vacate the schedule shop.
Consequent on R.C.A.No.2 of 2006 being dismissed, by order dated
02.12.2013, I.A.No.204 of 2009 was also dismissed on the same
day.

I. DOES A LANDLORD AND TENANT RELATIONSHIP EXIST          
BETWEEN THE PETITIONER IN R.C.C.No.8 OF 2002 AND THE        
RESPONDENT THEREIN?    

      Smt. Sundari R. Pisupati, Learned Counsel for the revision
petitioners, would submit that the sole respondent in this C.R.P.
did not adduce any evidence to show that she was the only legal
heir of the original landlord or that the first petitioner herein was
her tenant or that he had paid her rent; mere proof of title is not
sufficient; a landlord and tenant relationship must be established
for invoking the jurisdiction of the Rent Controller under the Act; it
is only if a landlord and tenant relationship is established would a
petition under Section 10 of the Act lie to evict the tenant from the
property of the landlord; no issue was framed by the Trial Court
whether a landlord and tenant relationship existed; the sole
respondent in this C.R.P. failed to establish, before the Courts
below, that she had put the first petitioner herein in possession; no
evidence was adduced regarding collection of rent; no lease
agreement was produced to show that there existed a landlord and
tenant relationship; and no evidence was let in by her to show that
she was the legal heir of the shop owner or that rent was paid  to
her.  Learned Counsel would rely on Tribhuvanshankar v.
Amrutlal ; Avulapalle Mallikarjuna v. N.T.
Chengalarayappa ; K.P. Janakiram v. K. Suguna Bai ;
Sebastiao Luis Fernandes (dead) through LRs v. K.V.P.
Shastri (dead) through LRs. .
      On the other hand Sri T.C.Krishnan, Learned Counsel for
the respondent herein, would submit that the first petitioner in
this C.R.P had admitted before the Rent Controller that he was a
tenant of the respondents father for a period of three years; except
for a bare averment in the counter, that he had purchased the
property from the respondents father, no evidence was adduced by
him to show that he had purchased the property; while the first
petitioner claimed to have purchased the shop by paying
consideration of Rs.40,000/- on 10.12.1984 and to have obtained
an unregistered sale deed, no suit for specific performance, based
on the unregistered sale deed dated 10.12.1984, was filed; the first
petitioner admitted before the Rent Controller that the father of the
respondent was the owner of the subject shop; as the first
petitioner admitted having taken the shop on lease from the
respondents father, it is not in dispute that he was the tenant of
the respondents father; the respondent had produced a copy of the
Will to show that she was her fathers sole legal heir; it is evident,
therefore, that she became the landlord of the property of which
the first petitioner was the tenant; both the Courts below held that
there existed a landlord and tenant relationship between the
respondent and the first petitioner herein; the respondents
children are eking out their livelihood pushing carts on the railway
platform; and, as both the Courts below have concurrently held
against the petitioners herein, this Court should refrain from
interference.  Learned Counsel would rely on Suraj Lamp and
Industries Pvt. Ltd. v. State of Haryana ; and T.S.
Prakash v. Xavier Emmanuel .
      Where a plaintiff institutes a suit for eviction of his tenant,
based on the relationship of a landlord and tenant, the scope of the
suit is limited.  The question of title cannot be gone into, as the
suit of the plaintiff would be dismissed even if he succeeds in
proving his title but fails to establish the privity of contract of
tenancy. In a suit for eviction, based on such a relationship, the
Court has only to decide whether the defendant is the tenant of the
plaintiff or not though the question of title, if disputed, may
incidentally be gone into in connection with the primary question
regarding the relationship between the litigating parties.  In a suit
for eviction, between the landlord and the tenant, the Court will
take only a prima facie decision on the collateral issue as to
whether the applicant was the landlord. If the Court finds
existence of relationship of landlord and tenant between the
parties it will have to pass a decree in accordance with law. All that
the Court has to do is to satisfy itself that the person seeking
eviction is a landlord who has a prima facie right to receive the
rent of the property in question. In order to decide whether denial
of the landlord's title by the tenant is bona fide, the Court may
have to go into the tenant's contention on the issue, but the Court
is not to decide the question of title finally as the Court has to see
whether the tenant's denial of title of the landlord is bona fide in
the circumstances of the case. (Dr. Ranbir Singh v. Asharfi Lal ;
Tribhuvanshankar1; LIC v. India Automobiles & Co. ).
      The pleadings in R.C.C.No.8 of 2002 must be construed
bearing in mind that the petitioner is not educated, she was
deserted by her husband, and her sons are making two ends met
pushing carts in the railway station.  Pleadings should receive a
liberal construction. No pedantic approach should be adopted to
defeat justice on hair-splitting technicalities. Some times,
pleadings are  expressed in words which may not expressly make
out a case in accordance with a strict interpretation of the law. In
such a case it is the duty of the court to ascertain the substance of
the pleadings to determine the question. It is not desirable to place
undue emphasis on form, instead the substance of the pleadings
should be considered. Whenever the question about lack of
pleading is raised the enquiry should not be so much about the
form of the pleadings.  Instead, the court must find out whether in
substance the parties knew the case and the issues upon which
they went to trial. If, inspite of deficiency in the pleadings, parties
knew the case, and they proceeded to trial on those issues by
producing evidence, no interference is called for.  (Ram Sarup
Gupta v. Bishun Narain Inter College ).
      A microscopic dissection and a minute analysis of the
pleadings to ascertain whether the respondent was the petitioners
tenant is not warranted as, in his cross-examination as RW.1, the
respondent admitted that he was granted lease for a period of three
years, on a monthly rent of Rs.650/-, by the petitioners father; the
petitioners father had constructed the shop and had let out the
same to him for beedies and cigarette business; there were glass
and wooden almyrahs, along with plywood roofing, in the premises;
he had agreed to re-deliver the shop to the petitioners father in the
same condition after expiry of the three year lease period; the
petitioners father had obtained electricity connection for the
scheduled premises in his name, and the same was being
continued in his name even though he died seven or eight years
ago; the schedule premises is useful for business; the petitioner
was deserted by her husband for the last ten years; and the
petitioners sons were carrying on business on push carts on
railway platforms.
      It is clear, from the petition filed in R.C.C. No.8 of 2002, that
the petitioner claimed to be the landlord of the subject building,
and that the respondent was her tenant.  Even if a plea is not
specifically made and yet is covered by an issue by implication,
and the parties knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from relying
upon it if it is satisfactorily proved by evidence. Where substantial
matters are touched, though indirectly or even obscurely in the
issues, and evidence has been led about them, then the argument
that a particular matter was not expressly taken in the pleadings
would be purely formal and technical. What the court has to
consider in dealing with such an objection is: did the parties know
that the matter in question was involved in the trial, and did they
lead evidence about it? (Bhagwati Prasad v. Chandramaul ; Ram
Sarup Gupta9).  In her evidence as P.W-1 the petitioner stated that
she was the absolute owner of the suit schedule property; the said
property originally belonged to her father; she was the only
daughter and the sole legal heir of her father who died on
02.08.1994; she was deserted by her husband; she was paying cist
to the Government, copies of which were filed as Ex.A-1; the
petition schedule property stood in her name as per Ex.A-2; she
had leased out the petition schedule premises to the respondent on
a monthly rent of Rs.650/- on 05.02.1998; originally the
respondent was a tenant under her father for some time; he later
vacated the premises; she carried on business in the petition
schedule premises; she then leased out the same to the respondent
who vacated the premises again during 1996; on the request of the
respondent, and due to unavoidable reasons, she had again leased
out the property to the respondent on a monthly rent of Rs.650/-;
she has three sons and a daughter; and her sons were carrying on
business in a pushcart.  In cross-examination, the petitioner
admitted that, at the time of letting out the premises to the
respondent, no document was executed.  She stated that, since
1986, she and her husband were not on cordial terms.  She denied
the suggestions that her father sold the petition schedule property
in favour of the respondent in the year 1976 and, since then,
neither she nor the father had any right over the petition schedule
premises or that there was no relationship of landlord and tenant
between her and the respondent.
      It was not even the case of the respondent before the Rent
Controller that there were any other legal heirs to the original
landlord other than the petitioner.  Having admitted tenancy, albeit
of the petitioners father, the respondent claimed to have later
purchased the subject shop from the petitioners father on
payment of consideration of Rs.40,000/-.  In his chief-examination
the respondent stated that, originally, the petition schedule
premises was allotted to the petitioners father by the Chittoor
Municipality, and he was carrying on business thereat; thereafter
the petitioners father had delivered possession of the  shop
premises on 10.12.1984 receiving consideration of Rs.40,000/-
from him; since then he had been continuously carrying on
business, in the petition schedule premises, as the absolute owner
by paying necessary taxes; after receiving the total consideration of
Rs.40,000/-, the petitioners father had executed a document in
his favour; he had produced the original of the said document
before the Mandal Revenue Officer, Chittoor for getting a patta in
his favour, and hence had filed a xerox copy of the same; since the
date of purchase of the petition schedule premises by him from the
petitioners father, neither the petitioner nor her father were
owners of the schedule premises; the petitioner had not inducted
him as a tenant; and there was no relationship of landlord and
tenant between him and the petitioner. In cross-examination, the
respondent admitted that he did not mention, about the terms and
conditions of the lease, in his counter; he did not also mention the
same in his chief-affidavit; he did not obtain a registered sale deed,
from the petitioners father, for the schedule property; and he did
not produce any document in Court as proof of sale of the schedule
premises in his favour by the father of the petitioner.
      No evidence was adduced by the respondent before the Rent
Controller regarding the mode and manner of payment of
consideration of Rs.40,000/- nor of any acknowledgement by the
petitioner or her father of receipt thereof.  On the respondents
admission that the petitioners father was the owner of the shop,
and he had earlier taken the said shop on lease from him, the onus
shifted to the respondent to establish that he had purchased the
shop from the petitioners father for valid consideration.  The effect
of an admission is that it shifts the onus on to the person
admitting the fact on the principle that what a party himself
admits to be true may reasonably be presumed to be so, and until
the presumption is rebutted, the fact admitted must be taken to be
established. An admission is the best evidence that an opposing
party can rely upon and, though not conclusive, is decisive of the
matter unless successfully withdrawn or proved erroneous.
(United India Insurance Co. Ltd. v. Samir Chandra
Chaudhary ; Phipson in his Law of Evidence (1963 Edn., para
678; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak
Gosavi ).  As the respondent failed to discharge this onus, both
the Courts below were justified in directing eviction of the
respondent from the shop belonging to the petitioner.
      In RCC No.8 of 2002, the Rent Controller framed certain
points for consideration including 1). Whether the petitioner
succeeded to the schedule property from her father as his sole
legal heir? 2) whether the petitioner was entitled to evict the
respondent from the schedule property of the landlord; and 3)
whether the respondent is the owner of the schedule property as
claimed by him?  In his order, in R.C.C. No.8 of 2002 dated
11.09.2006, the Rent Controller held that the petitioners father
had occupied the petition schedule shop thirty years ago and had
constructed a thatched shop thereon in the old bus stand area of
Chittoor; he was carrying on business thereat; a door number was
allotted to the petition schedule shop and was incorporated in the
municipal records in the year 1981-82; the petitioners father had
let out the shop to the respondent on a monthly rent of Rs.650/-;
the petitioners father died on 02.08.1994; the respondent
continued as a tenant in the schedule shop after the death of the
petitioners father; the petitioner was deserted by her husband for
the last ten years, and her three sons were carrying on business on
push carts; the respondent had set up ownership of the schedule
property, taking advantage of the death of the petitioners father, in
order to knock away the schedule property; he had taken
advantage of the weak position of the petitioner; though he
received Ex.A-2 legal notice, the respondent had failed to pay
arrears of rent; he had set up ownership to the schedule premises
without producing any documentary proof; he had admitted that
he did not obtain any registered sale deed from the petitioners
father for the schedule shop; the electricity service connection for
the schedule shop was in the name of the petitioners father; the
petitioner had not only proved that the respondent had committed
default, but had also proved that the petition schedule property
was required for her personal occupation so as to enable her sons
to set up business; the respondent had failed to prove that he had
paid rents regularly; the petitioner had succeeded to the schedule
property as the sole legal heir of her father; and she was entitled to
evict the respondent from the schedule premises.
      In its order, in R.C.A. No.2 of 2006 dated 02.12.2013, the
appellate Court noted four points as arising for consideration in
the appeal including 1) whether there was any landlord and tenant
relationship between the petitioner and the respondent? and 2)
whether denial of the landlord and tenant relationship by the
respondent was bonafide?  The Appellate Court held that there was
no dispute with regard to the identity of, and the present
occupation of the respondent over, the schedule property; and the
only dispute, as per the respondent, was that he had purchased
the schedule property from the petitioners father while he was his
tenant.  After noting the admission of the respondent in cross-
examination, the Appellate Court observed that it was evident that
the petitioners father was the actual owner of the scheduled
property; he had leased out the property on a monthly rent of
Rs.650/- to the respondent; if any valid sale deed was executed by
the petitioners father in his favour, it was for the respondent to
have marked it as an exhibit; while R.W-1, in his chief-
examination, had stated that he had filed a xerox copy of the
document in Court, there was no explanation as to why he could
not obtain any registered document from the petitioners father;
the respondents contention  was not valid in view of Section 2(6)
read with Section 17(b) of the Registration Act, 1908; and, as the
respondent had admitted his tenancy under the father of the
petitioner, there was no validity in his claim to have purchased the
property.
      Immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance.
(Suraj Lamp and Industries Pvt. Ltd.5).  The respondent relied on
a photostat copy of an unregistered sale deed dated 10.12.1984 in
support of his claim to have purchased the subject shop from the
petitioners father.  As no reliance can be placed on an
unregistered sale deed, and in the absence of any evidence
adduced to establish payment of consideration of Rs.40,000/- to
the petitioners father, the Courts below were justified in holding
that the respondent was unable to show that he was the owner of
the subject property.   The respondents admission that the
petitioners father was the owner coupled with Ex.A-2 show that
the petitioner inherited the subject shop from her father.  The
Evidence Act places admission in the province of relevance,
presumably on the ground that they being declarations against the
interest of the person making them, they are in all probability true.
Just like any other piece of evidence, admissions can be admitted
in evidence for drawing an inference of truth. (State of
Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari ;  Law  
of Evidence, by M. Monir, 15th Edn.) Admission of a party in the
proceedings, either in the pleadings or oral, is the best evidence
and the same does not need any further corroboration.
(Ahmedsaheb v. Sayed Ismail ). If the facts are admitted, it is
idle to contend that the party, on whom the burden of proof lay,
would still be liable to produce direct evidence to establish the fact.
(National Insurance Co. Ltd. v. Rattani ).  Admission is the best
piece of evidence against the persons making admission. While
evidentiary admissions are not conclusive proof of the facts
admitted, and may be explained or shown to be wrong, they do
raise an estoppel and shift the burden of proof placing it on the
person making the admission or his representative-in-interest.
Unless shown or explained to be wrong, they are efficacious proof
of the facts admitted.  (Samir Chandra Chaudhary11; Avadh
Kishore Das v. Ram Gopal ).  As the respondent admitted that
he was earlier the tenant of the petitioners father, and as he failed
to establish that he had purchased the subject property, it is
evident that there existed a landlord tenant relationship between
the petitioner and the respondent as the petitioner had established
that she had inherited the subject shop from her father.
      The mere fact that the petitioner did not produce a registered
lease deed, to show that she had let out the subject premises to
the respondent, is of no consequence.  Lease of immoveable
property can be established by other evidence, even in the absence
of a registered lease deed.   If there is other uncontroverted
evidence available on record to support the claim of grant of lease,
that would be sufficient to uphold the decree.  Dehors the
instrument, parties can create a lease as envisaged in the second
paragraph of Section 107 of the T.P.Act.  As a lease is a transfer of
a right to enjoy the property, and such transfer can be made
expressly or by implication even in the absence of a registered
instrument, the court can determine whether there was in fact a
lease otherwise than through such a deed. (Ahmedsaheb14;
Anthony  v. K.C. Ittoop & Sons ). The status of the parties, on
the basis of undisputed facts pertaining to the demised premises,
as landlord and tenant can always be accepted and the rights of
the parties can be worked out on that basis. (Ahmedsaheb14).
      In K.P. Janakiram3, reliance on which is placed by
Smt.Sundari R. Pisupati, Learned Counsel for the petitioner, both
the courts below had proceeded on the premise that the petitioner
had admitted that he was a tenant of the subject property though
there was a denial by the petitioner that neither his father nor he
was a tenant. The petitioners case was that his father was a
purchaser under an agreement, and he was the absolute owner;
and after his fathers death, he had become the absolute owner. It
is in this context that this Court held that it was not the Law that,
whenever the landlord establishes title and the tenant fails to prove
the title pleaded by him, such a person shall be construed to be a
tenant under the landlord; when the alleged tenant fails to prove
his own title, it did not mean that he was a tenant under the
owner; his possession could be in any other capacity like a
mortgagee or a licensee or even a person in adverse possession;
having regard to the specific stand taken by the petitioner-tenant,
that he was not a tenant of the subject premises, the question that
the Courts below should have decided was whether there was a
jural relationship of landlord and tenant between the parties; and
the proviso to Section 10 of the Rent Control Act specifically
provided that whenever a tenant denies title of the landlord, if such
a denial is bonafide, it is incumbent on the part of the Rent
Controller to direct the landlord to approach the Civil Court to
establish his title and seek eviction of the tenant.
      In Avulapalle Mallikarjuna2 this Court held that every
person in possession of a premises, even without title, cannot
automatically become a tenant of any one including the rightful
owner; while possession can come into existence on the unilateral
act of parties, a tenancy would emerge only with the consent of
parties; the consent can be expressed orally, or in writing; and,
until the tenancy is established, there is no basis for the trial
Court to order eviction of the respondent. Except to contend that
he had purchased the property, it is not even the case of the
respondent that his occupation of the subject shop was as a
mortgagee or a licensee or that he was in adverse possession.
Reliance placed by Smt. Sundari R. Pisupati, on the judgments of
this Court in K.P. Janakiram3 and Avulapalle Mallikarjuna2, is,
therefore, misplaced.
      Findings of fact recorded by the courts below, reached on a
careful appreciation of the entire material evidence available on
record,  should, ordinarily, not be interfered with by this Court in a
revision petition filed under Section 22 of the Act.  (T.S.
Prakash6).  The general rule, that the High Court will not interfere
with concurrent findings of the courts below, is not an absolute
rule. Some of the well-recognised exceptions are where (i) the
courts below have ignored material evidence or have acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. A decision based on no evidence are not
only cases where there is a total dearth of evidence, but also to
cases where the evidence, taken as a whole, is not reasonably
capable of supporting the finding. (Sebastiao Luis Fernandes4;
Hero Vinoth (minor) v. Seshammal ). The orders, passed by
both the Courts below, do not fall under any of the exceptions
referred to hereinabove. The concurrent findings of fact, reached
on an overall consideration of material and relevant facts, by the
Courts below do not, therefore, necessitate interference in revision
proceedings under Section 22 of the Act.

II. IS FAILURE TO PASS ORDERS IN I.A.No.204 OF 2009,  
BEFORE R.C.A.No.2 OF 2006 WAS DISPOSED OF, FATAL?        

      Smt. Sundari R. Pisupati, Learned Counsel for the revision-
petitioners, would submit that I.A.No.204 of 2009, requesting the
appellate Court to receive additional documents, was not
considered before the appeal in R.C.A.No.2 of 2006 was disposed
of.  Learned Counsel would rely on The Premier Automobiles
Ltd., Bombay v. Kabirunnissa ; and Thimmaraju
Satyanarayana Rao v. Secretary, I.L.T.D. Co. Staff Co-operative
Industrial House Constructions Society Ltd .
      On the other hand Sri T.C.Krishnan, Learned Counsel for
the sole respondent in this C.R.P, would submit that the
documents filed by petitioners 2 to 5 herein, in I.A.No.204 of 2009,
are wholly irrelevant and are not supported by any pleadings in the
counter filed in R.C.C.No.8 of 2002; all the documents, filed along
with I.A.No.204 of 2009 in R.C.A.No.2 of 2006, are forged and
fabricated; among the documents, filed along with I.A.No.204 of
2009, is a settlement deed dated 07.03.2005 allegedly executed by
Sri C.Hari Krishna in favour of the respondent in R.C.C. No.8 of
2002; the first petitioner filed his chief-examination as RW.1,
before the Rent Controller, on 10.02.2005; R.C.C.No.8 of 2002 was
adjourned to 13.07.2005 for examination and marking of
documents; the respondent in R.C.C. No.8 of 2002 marked Exs.B1
to B8, and was cross-examined thereafter on 14.09.2005; all the
documents, which petitioners 2 to 5 in this C.R.P. filed along with
I.A.No.204 of 2009, relate to a period prior to 13.07.2005 on which
date Exs.B1 to B.8 were marked; no explanation is forthcoming
from petitioners 2 to 5 herein regarding non-filing of these
documents along with Exs.B1 to B.8; evidence can be let in only to
support a plea; in the absence of any plea in the counter filed in
R.C.C.No.8 of 2002, it is not open to petitioners 2 to 5 herein to let
in evidence in support of a non-existent plea; I.A.No.204 of 2009 in
R.C.A.No.2 of 2006 was dismissed on 02.12.2013; and the
petitioners herein have not chosen to question the said order either
in the present revision or separately.
      In The Premier Automobiles Ltd., Bombay19, during the
pendency of the appeal before the appellate court, an application
for admitting additional evidence was filed by the appellants, which
remained undisposed of. Even while pronouncing its judgment
disposing of the appeal finally, the appellate court did not advert to
it. It was only after the case was disposed of that the application
for additional evidence was rejected by a short order, observing
that the appellants had sufficient opportunity to produce the
documents in the trial court, and it had failed to do so.  It is in this
context that the Supreme Court held:-
       ..The learned counsel for the appellant has also placed before us
several material pieces of evidence and circumstances including an important
admission of the original plaintiff, and in reply the learned advocates for the
respondents have relied upon the evidence led on their behalf and accepted by
the first two Courts. We do not consider it appropriate to deal with them as in
our view, the entire evidence led by the parties requires a fresh consideration
by
the Court of facts. Accordingly, we allow the appeal, set aside the judgments of
the appellate Court and the, High Court, and remit the case to the appellate
court for a fresh decision in accordance with law. THE Court will, in the first
instance, hear and dispose of the application under Order 41, Rule 27, Civil
Procedure Code'and onlv thereafter take up the final hearing of the appeal..

      In Thimmaraju Satyanarayana Rao20 an application, for
reception of additional evidence, was made before the appellate
Court and certain documents were filed along with the said
application.  On the same day, on which judgment was delivered in
the appeal, the application, for reception of additional evidence,
was dismissed as infructuous.  It is in this context that this Court
held:-
       .In the light of the peculiar facts and circumstances of the case and
taking into consideration the nature of the order which was made by the
appellate Court in relation to the application for reception of the additional
evidence, the decree and judgment of the appellate Court are hereby set aside
and the matter is remanded to the appellate Court for the purpose of deciding
the application for reception of additional evidence and also further make
appropriate orders in the appeal in accordance with law..

      I.A. No.204 of 2009 was filed before the Appellate Court, by
petitioners 2 to 5 in this C.R.P, requesting the Court to receive (a)
the unregistered sale deed dated 10.12.1984 said to have been
executed by the petitioners father in favour of the respondent; (b)
the provisional sale deed dated 11.10.1978 allegedly executed by
the petitioners father in favour of Sri C.Harikrishna (his son-in-law
and the petitioners husband); [c] the settlement deed dated
07.03.2005 allegedly executed by Sri C. Harikrishna in favour of
the respondent; (d) the sale deed dated 19.03.1976 allegedly
executed by the petitioners father in favour of Sri V.A. Govindayya;
and (e) a telephone bill.  Smt. Sundari R. Pisupati, Learned
Counsel for the revision petitioners, would fairly state that none of
the aforesaid documents are registered documents.
      In the affidavit filed in support of I.A. No.204 of 2009, the 3rd
petitioner herein stated that Sri C. Harikrishna had executed a
settlement deed dated 07.03.2005 in favour of their father Sri K.
Chengalraya Chetty; their father was in possession of the
documents mentioned in the petition along with other connected
documents, as he was the kartha and was managing the family;
his deceased father could not file the same as it was misplaced in
the house; after his demise, a thorough search was made in the
house, and they were able to trace the documents; hence they were
filing the same with the application; the same may be received as
additional evidence in the appeal; the said documents were
material and relevant for a just decision in the case; and the lapse
in not filing the same earlier was neither willful nor wanton.
      None of the documents (except the unregistered sale deed
dated 10.12.1984) which were sought to be produced in evidence,
by way of I.A.No.204 of 2009, are referred to in the counter filed by
the respondent (the deceased first petitioner in this C.R.P) before
the Rent Controller.  In the absence of a clear plea no amount of
evidence, led in relation thereto, can be looked into and the
respondent cannot be allowed to build up a case on a non-existent
plea. (Bondar Singh v. Nihal Singh ; Rajgopal v. Kishan
Gopal ; Siddik Mahomed Shah v. Mt. Saran ; Bhagat Singh v.
Jaswant Singh ).  No party can be permitted to travel beyond its
pleading and all necessary and material facts should be pleaded by
the party in support of the case set up by it. (Ram Sarup Gupta9).
There is no lis between the parties on a question unsupported by
pleadings and the court would not examine the same even if some
evidence is adduced in this regard.  (Rajgopal22).  Merely taking
out an application, under Order 41 Rule 27, to lead evidence will
not suffice as no evidence can be let in without any pleading. (Syed
and Co. v. State of J&K ).
      Courts should be cautious and must always act with great
circumspection in dealing with claims for letting in additional
evidence. (Municipal Corpn. of Greater Bombay v. Lala
Pancham ). The general principle is that the appellate court
should not travel outside the record of the lower court and cannot
take any evidence in appeal. However, as an exception, Order 41
Rule 27 CPC enables the appellate court to take additional
evidence in exceptional circumstances. The appellate court may
permit additional evidence only and only if the conditions laid
down in this Rule are found to exist. The parties are not entitled,
as of right, to the admission of such evidence. The provision does
not apply when, on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment. The matter
is entirely within the discretion of the court and is to be used
sparingly. Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the Rule itself. (K.
Venkataramiah v. A. Seetharama Reddy ; Lala Pancham26;  
Soonda Ram v. Rameshwarlal ; Syed Abdul Khader v. Rami
Reddy ; and Union of India v. Ibrahim Uddin ). Parties to the
lis are not entitled to produce additional evidence as of course or
as a routine. They must satisfy the conditions stated in Order 41
Rule 27.  (Basayya I.Mathad v. Rudrayya S.Mathad ).
        It was the case of the respondent, in the counter filed by
him before the Rent Controller, that he had purchased the subject
shop from the petitioners father.  Except the unregistered sale
deed dated 10.12.1984, the other documents filed along with I.A.
No.2004 of 2009 are unconnected with the pleadings.  A new case
was sought to be set up, for the first time in appeal, by the
appellants (petitioners 2 to 5 in this C.R.P).  The affidavit filed in
support of I.A.No.204 of 2009 makes no mention as to how these
documents were necessary for the appellate court to pronounce
judgment.  As an unregistered sale deed cannot be looked into, to
determine whether or not immovable property was alienated, the
revision petitioners cannot be said to have suffered prejudice as a
result of the appellate court dismissing I.A.No.204 of 2009 after
R.C.A.No.2 of 2006 was dismissed on 02.12.2013.
      The order passed by the Principal Senior Civil Judge, in
I.A.No.204 of 2009 dated 02.12.2013, has not been subjected to
challenge, and it is only the order passed in R.C.A.No.2 of 2006
dated 02.12.2013 which is questioned in this C.R.P. The provisions
of Order 41 Rule 27 have not been engrafted in the Code so as to
patch up the weak points in the case and to fill up the omission in
the court of appeal  it does not authorise any lacunae or gaps in
evidence to be filled up. (N. Kamalam v. Ayyasamy ). The
appellate court should not, ordinarily, allow new evidence to be
adduced in order to enable a party to raise a new point in appeal.
(Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ;
and Ibrahim Uddin30).  The requirement of Order 41 Rule 27 CPC
must be limited to those cases where it is found necessary to
obtain such evidence for enabling the Court to pronounce
judgment. This provision does not entitle the appellate court to let
in fresh evidence at the appellate stage where, even without such
evidence, it can pronounce judgment in a case. (Lala Pancham26;
Ibrahim Uddin30; Lala Pancham26; N. Kamalam32).  
      As has been rightly pointed out by Sri T.C. Krishnan,
Learned Counsel, all these documents relate to a period before the
respondent marked Exhibits B2 to B8 before the Rent Controller
on 14.09.2005.  Except for a bald averment that these documents
were misplaced, no explanation is forthcoming as to why these
documents were not marked earlier or why they were not even
referred to in the counter filed in R.C.C.No.8 of 2002.  Parties to an
appeal shall not be entitled to produce additional evidence unless
they have shown that, inspite of due diligence, they could not
produce such documents; and such documents are required to
enable the court to pronounce proper judgment. (Karnataka Board
of Wakf v. Govt. of India ). In the absence of satisfactory reasons
for the non-production of the evidence in the trial court, additional
evidence should not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the indulgence of
being allowed to give further evidence under this Rule. A party who
had ample opportunity to produce certain evidence in the lower
court but failed to do so, or elected not to do so, cannot have it
admitted in appeal. (State of U.P. v. Manbodhan Lal
Srivastava ; S. Rajagopal v. C.M. Armugam ; and Ibrahim
Uddin30). The person seeking admission of additional evidence
should be able to establish that, with the best efforts, such
additional evidence could not have been adduced at the first
instance. (Shivajirao Nilangekar Patil v. Mahesh Mdhav
Gosavi ).
      I.A. No.204 of 2009 was filed by petitioners 2 to 5 herein
seven years after the sole respondent in this C.R.P. had filed R.C.C.
No.8 of 2002 before the Rent Controller, and three years after they
had filed R.C.A. No.2 of 2006 before the Principal Senior Civil
Judge, Chittoor.  Where an application to the appellate Court has
been made very many years after the filing of the petition, and
several years after the appeal had been filed, no interference from
this Court is called for against an order passed by the appellate
Court refusing to entertain the I.A.  (Pramod Kumari Bhatia v.
Om Prakash Bhatia ; Lala Pancham26).
        If, as contended by petitioners 2 to 5 herein, the father of the
petitioner in R.C.C.No.8 of 2002 had really executed the sale deed
dated 19.03.1976 in favour of Sri V.A. Govindaiah, the question of
his executing a sale deed later in favour of the respondent in
R.C.C. No.8 of 2002 on 10.12.1984 would not arise, as he could no
longer be said to have title over the subject property.  Likewise,
after executing a sale deed in favour of Sri V.A. Govindaiah on
19.03.1976, the petitioners father could not have executed a sale
deed in favour of Sri C. Harikrishna on 11.10.1978 as he had
already parted with his title over the property earlier.  As the
petitioners father did not have title, and could have conferred title
over the property in favour of Sri C. Harikrishna on 11.10.1978,
Sri C.Harikrishna could not have executed a valid settlement deed
in favour of the respondent on 07.03.2005, as he himself had no
title over the property.  The submission of Sri T.C. Krishnan,
Learned Counsel, that these documents are fabricated cannot,
therefore, be brushed aside.
      In the instant case, it is not as if the additional evidence was
required by the Court to enable it to pronounce judgment. The
documents sought to be brought on record are not documents
which were discovered later. The documents could have been
produced before the Rent Controller.  (State of Gujarat v.
Mahendrakumar Parshottambhai Desai ).  Nothing has been  
averred as to how these documents have any bearing on any of the
issues involved in the present case.  Even in the application there
is no averment as to the relevancy and necessity of the document
to be brought on record by way of additional evidence, and for it to
be read in evidence. It is, therefore, not in the interest of justice to
allow such an application. (Noor Sk. Bhikan v.State of
Maharashtra ).  I see no reason, therefore, to accept the
submission of Smt. Sundari R. Pisupati, Learned Counsel for the
petitioner, that the order of the appellate Court, in R.C.A.No.2 of
2006, should be set aside and the appeal remanded back to the
Principal Senior Civil Judge directing him to pass orders in
I.A.No.204 of 2009 either before or along with R.C.A.No.2 of 2006.
CONCLUSION:  
        Viewed from any angle, the order of the Learned Principal
Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006 dated
02.12.2013, affirming the order of the Rent Controller in
R.C.C.No.8 of 2002 dated 11.09.2006, does not necessitate
interference in the present revision proceedings.  The C.R.P fails
and is, accordingly, dismissed.  The miscellaneous petitions, if any
pending, shall also stand dismissed.  No costs.

      ______________________________
      RAMESH RANGANATHAN, J.  
Date:08-08-2014.

Note:
L.R. copy to be marked.
B/O
MRKR/CS



        After pronouncement of the order, Smt.Sundari R.Pisupati,
Learned Counsel for the petitioners, submitted that the petitioners
undertook to voluntarily vacate the premises within three months;
and this Court may grant them three months time to vacate the
subject premises.  As no affidavit of undertaking has been filed by
the petitioners before this Court, it would suffice if they are
permitted to submit an affidavit of undertaking before the Court
below.  In case an undertaking is filed by the petitioners, within
one week from today, to vacate the subject premises within three
months from today, the Court below shall consider the same, and
pass orders thereupon, in accordance with law.
______________________________  
RAMESH RANGANATHAN, J.    
Date:08-08-2014. 

Saturday, August 16, 2014

Se. 6 of ULC Act - Land declared as with in limits of ceiling - Sec.4 of L.A.Act - Govt. acquired the same land for purpose of Telephone Department - request to Review the award as per sec.26 of ULC Act not permissible - Award passed along with statutory benefits - Award become final due dismissal of SLP by S.C.- E.P. filed - objection under sec.26 of ULC Act - and also writ was field - their Lordships held that By its very nature, the option provided for under Section 26 comes into play only when the owner of the land expresses intention to sell it. It was not even alleged that respondent Nos.1 and 2 expressed their intention to sell it. Therefore, the question of the State Government choosing to exercise its option to purchase it does not arise. At any rate, the petitioner does not figure anywhere in the picture in a situation contemplated under Section 26 of the ULC Act. It is ultimately for the State Government, not for the Land Acquisition Officer to take a decision under Section 26 of the ULC Act. The petitioner is under a misconception that even where the land is acquired by invoking the provisions of the LA Act, Section 26 of the ULC Act comes into play. One has to keep in mind, the distinction between the voluntary transfers on the one hand and involuntary transfers on the other hand. The transfer that takes place as a result of initiation of proceedings under the LA Act, is, beyond any pale of doubt, an involuntary one. The acquisition is done irrespective of the intention of the owner, and many a time, in spite of the opposition to it. Therefore, occasion to invoke Section 26 of the ULC Act, in the event of any transfer taking place as a result of acquisition by invoking the provisions of the LA Act, does not exist. The acceptance of the contention of the petitioner by the executing Court would have the effect of reviewing, if not setting aside the order passed by this Court as confirmed by the Honble Supreme Court in the S.L.P filed by the petitioner itself. Such a course is totally impermissible. In addition to that, the learned Presiding Officer of the executing Court has referred to several judgments in support of his conclusion that all the statutory benefits under the LA Act are extendable to non-surplus lands, acquired by the Government. This Court does not find any reason to interfere with the view taken by the executing Court. The C.R.P is accordingly dismissed. =CIVIL REVISION PETITION No. 4916 OF 2012 18-07-2014 The General Manager (Planning), O/o the P.G.M., Hyderabad Telecom District,BSNL Bhavan, Adarshnagar, Hyderabad - 50063... PETITIONER S. Sunandan Reddy @ R. Lakshminarayana Reddy and two others RESPONDENTS = 2014 - July-Part - http://judis.nic.in/judis_andhra/filename=11794

Se. 6 of ULC Act - Land declared as with in limits of ceiling - Sec.4 of L.A.Act - Govt. acquired the same land for purpose of Telephone Department - request to Review the award as per sec.26 of ULC Act not permissible - Award passed along with statutory benefits - Award become final due dismissal of SLP by S.C.- E.P. filed - objection under sec.26 of ULC Act - and also writ was field - their Lordships held that  By its very nature, the option provided for under Section 26 comes into play only when the owner of the land expresses intention to sell it.  It
was not even alleged that respondent Nos.1 and 2 expressed  their intention to sell it.  
Therefore, the question of the State Government choosing to exercise its option to purchase it
does not arise.   At any rate, the petitioner does not figure anywhere in the picture in a situation contemplated under Section 26 of the ULC Act.  It is ultimately for the State Government, not for the Land Acquisition Officer to take a decision under Section 26 of the ULC Act. The petitioner is under a misconception that even where the land is acquired by invoking the provisions of the LA Act, Section 26 of the ULC Act comes into play.  One has to keep in mind, the distinction between the voluntary transfers on the one hand and involuntary transfers on the other hand.
The transfer that takes place as a result of initiation of proceedings under the LA Act, is, beyond any pale of doubt, an involuntary one.   The acquisition is done irrespective of the intention of the owner, and many a time, in spite of the opposition to it.   Therefore, occasion to invoke Section 26 of the ULC Act, in the event of any transfer taking place as a result of acquisition by invoking the provisions of the LA Act, does not exist.  The acceptance of the contention of the petitioner by the executing Court would have the effect of reviewing, if not setting aside the order passed by this Court as confirmed by the Honble Supreme Court in the S.L.P filed by the petitioner itself.  Such a course is totally impermissible.  In addition to that, the learned Presiding Officer of the executing Court has referred to several judgments in support of his conclusion that all the statutory benefits under the LA Act are extendable to non-surplus lands, acquired by the Government.  This Court does not find any reason to interfere with the view taken by the executing Court.  The C.R.P is accordingly dismissed. =

Respondent Nos.1 and 2 are the owners of about
13486 sq. mtrs of land at Adarshnagar of the Hyderabad city.
They filed declaration under Section 6 of the Urban Land
(Ceiling and Regulation) Act, 1976 (for short the ULC Act) in
respect of the said land.
On processing the same, the Special
Officer and Competent Authority passed an order dated 23-
12-1983 holding that an extent of 8812.78 sq. mtrs is in
excess of ceiling limit and that an extent of 3663.91 sq. yards
is retainable area.  The said order became final.
     
The petitioner herein approached the Government of
Andhra Pradesh for acquisition of the land from respondent
Nos.1 and 2, for the purpose of extension of a telephone
exchange.  A notification under Section 4(1) of the Land
Acquisition Act, 1894 (for short the LA Act) was published on
25-08-1996.
This was followed by a notification under
Section 6 of the Act.  In the context of passing award, the
Special Officer is said to have informed the Land Acquisition
Officer i.e., the 3rd respondent herein, that award can be
passed in respect of non-surplus area, whereas the
determination of compensation for the surplus land shall
await further proceedings.
Accordingly, the 3rd respondent
passed an award dated 30-05-1989 in respect of a
non-surplus land of 3363.91 sq. yards fixing the market value
at Rs.325/- per sq. yard, and one-third thereof was deducted
since the area was acquired in bulk.  Solatium at 30%,
additional market value and interest provided for under the
Act were also awarded. =

Once the Special Officer and Competent Authority
declares a particular area as within the ceiling limits
prescribed under the ULC Act, the declarant is entitled to use
it as per his wishes.
Hardly any restrictions can be placed.
Section 26 of the ULC Act is only to the effect that in case the
owner of such non-surplus land intends to sell or othewise
transfer it, the State Government shall have the first option to
purchase it, at the market value.
By its very nature, the
option provided for under Section 26 comes into play only
when the owner of the land expresses intention to sell it.  It
was not even alleged that respondent Nos.1 and 2 expressed
their intention to sell it.
Therefore, the question of the State
Government choosing to exercise its option to purchase it
does not arise.
At any rate, the petitioner does not figure
anywhere in the picture in a situation contemplated under
Section 26 of the ULC Act.
 It is ultimately for the State
Government, not for the Land Acquisition Officer to take a
decision under Section 26 of the ULC Act.
      The petitioner is under a misconception that even where
the land is acquired by invoking the provisions of the LA Act,
Section 26 of the ULC Act comes into play.
One has to keep
in mind, the distinction between the voluntary transfers on
the one hand and involuntary transfers on the other hand.
The transfer that takes place as a result of initiation of
proceedings under the LA Act, is, beyond any pale of doubt,
an involuntary one.
The acquisition is done irrespective of
the intention of the owner, and many a time, in spite of the
opposition to it.
Therefore, occasion to invoke Section 26 of
the ULC Act, in the event of any transfer taking place as a
result of acquisition by invoking the provisions of the LA Act,
does not exist.
      The decree passed in O.P No. 94 of 1991 is modified by
this Court in common judgment dated 19-06-2006 in
C.C.C.A Nos.138 of 1999 and 170 of 2001 and has assumed  
finality, with the dismissal of S.L.P by the Honble Supreme
Court.
 In clear and categorical terms, the trial Court as well
as this Court granted the relief of solatium, additional market
value and interest under the relevant provisions of the LA Act.

The acceptance of the contention of the petitioner by the
executing Court would have the effect of reviewing, if not
setting aside the order passed by this Court as confirmed by
the Honble Supreme Court in the S.L.P filed by the petitioner
itself.  Such a course is totally impermissible.  
In addition to
that, the learned Presiding Officer of the executing Court has
referred to several judgments in support of his conclusion
that all the statutory benefits under the LA Act are extendable
to non-surplus lands, acquired by the Government.
      This Court does not find any reason to interfere with the
view taken by the executing Court.  The C.R.P is accordingly
dismissed. 

2014 - July-Part - http://judis.nic.in/judis_andhra/filename=11794
HONBLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 4916 OF 2012    
       
18-07-2014

The General Manager (Planning), O/o the P.G.M., Hyderabad Telecom District,BSNL  
Bhavan, Adarshnagar, Hyderabad - 50063... PETITIONER  

S. Sunandan Reddy @ R. Lakshminarayana Reddy and two others RESPONDENTS          

Counsel for the Petitioner: Sri R.S. Murthy,
                             Standing Counsel

Counsel for the Respondents: Sri B. Vijaysen Reddy

<GIST:

>HEAD NOTE:  

? Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 4916 OF 2012    

Dated:18-07-2014

ORDER:
       

      This revision is filed against the order dated 10-09-2012
passed by the Court of the I Senior Civil Judge, City Civil
Court, Hyderabad in E.P No. 53 of 2007 in O.P No. 94 of
1991.
      The facts that gave rise to the revision are as under:
      Respondent Nos.1 and 2 are the owners of about
13486 sq. mtrs of land at Adarshnagar of the Hyderabad city.
They filed declaration under Section 6 of the Urban Land
(Ceiling and Regulation) Act, 1976 (for short the ULC Act) in
respect of the said land.  On processing the same, the Special
Officer and Competent Authority passed an order dated 23-
12-1983 holding that an extent of 8812.78 sq. mtrs is in
excess of ceiling limit and that an extent of 3663.91 sq. yards
is retainable area.  The said order became final.
      The petitioner herein approached the Government of
Andhra Pradesh for acquisition of the land from respondent
Nos.1 and 2, for the purpose of extension of a telephone
exchange.  A notification under Section 4(1) of the Land
Acquisition Act, 1894 (for short the LA Act) was published on
25-08-1996.  This was followed by a notification under
Section 6 of the Act.  In the context of passing award, the
Special Officer is said to have informed the Land Acquisition
Officer i.e., the 3rd respondent herein, that award can be
passed in respect of non-surplus area, whereas the
determination of compensation for the surplus land shall
await further proceedings.  Accordingly, the 3rd respondent
passed an award dated 30-05-1989 in respect of a
non-surplus land of 3363.91 sq. yards fixing the market value
at Rs.325/- per sq. yard, and one-third thereof was deducted
since the area was acquired in bulk.  Solatium at 30%,
additional market value and interest provided for under the
Act were also awarded. 
      At that stage, writ petitions came to be filed in relation
to the proceedings under the LA Act.  Ultimately, respondent
Nos.1 and 2 filed O.P No. 94 of 1991 before the Court of I
Senior Civil Judge, City Civil Court, Hyderabad under Section
18 of the LA Act seeking enhancement of compensation.
Through its judgment dated 31-03-1989, the trial Court
enhanced the compensation, by fixing the market value
@ Rs.1,000/- per sq. yard.  Respondent Nos.1 and 2 filed
C.C.C.A No. 138 of 1999 seeking further enhancement at the
rate of Rs.4,000/- per sq. yard. The 3rd respondent on the
other hand filed C.C.C.A No. 170 of 2001 challenging the
enhancement. Through its common judgment dated  
19-06-2006, a Division Bench of this Court enhanced the
market value of the acquired land, to Rs.1,800 per sq. yard.
      The petitioner filed S.L.P No. 860 of 2007 before the
Honble Supreme Court challenging the common judgment  
passed by this Court in C.C.C.A Nos.138 of 1999 and 170 of
2001 mainly on the ground that no notice was issued to it
under Section 3(b) of the LA Act.  The S.L.P was dismissed on
19-03-2007 and the review filed in it was also dismissed.
      Respondent Nos.1 and 2 filed E.P No. 53 of 2007 to
recover the amount covered by the Award, as modified in
appeals, together with statutory benefits.  Certain amounts
were paid at various points of time. A calculation memo was
filed indicating the amount, which according to respondent
Nos.1 and 2 is payable to them.  The petitioner filed a counter
as well as calculation memo opposing the figures furnished by
respondent Nos.1 and 2.  The principal contention urged by
the petitioner was that though the land is non-surplus in
nature, it is governed by the provisions of the ULC Act and
that no statutory benefits are extendable to it.
      Respondent Nos.1 and 2, on the other hand, submitted
that once the land was treated as non-surplus and an award
was passed under Section 11 of the LA Act, all the benefits
provided for under that Act are available to them.

      Through the order under revision, the executing Court
allowed the E.P holding that respondent Nos.1 and 2 are
entitled to be paid a sum of Rs.3,73,47,283/-.  Hence, the
revision.
      Sri R.S. Murthy, learned counsel for the petitioner
submits that the surplus land as well as the non-surplus
land held by respondent Nos.1 and 2 were acquired for the
benefit of the petitioner and since both the bits were dealt
with under the ULC Act, the benefits such as, solatium and
additional market value are not payable for them.  He
contends that even in respect of non-surplus land,
Section 26 of the ULC Act becomes relevant and that the
executing Court was not justified in allowing the E.P.
      Sri B. Vijaysen Reddy, learned counsel for respondent
Nos.1 and 2, on the other hand, submits that from the
inception, the 3rd respondent maintained a clear distinction
between the surplus land on the one hand, and non-surplus
land on the other hand and only on being informed by the
Special Officer and Competent Authority under the ULC Act,
that an Award under the LA Act came to be passed in respect
of the non-surplus land.  He submits that this very ground
was raised by the petitioner in the SLP filed against the
common judgment of this Court in C.C.C.A Nos.138 of 1999
and 170 of 2001, and one it was rejected by the Honble
Supreme Court, it is not open to them to repeat the same
contention in the execution proceedings.
      It is not in dispute that the land that was acquired from
respondent Nos.1 and 2 comprised of two categories, namely,
surplus land and non-surplus land, under the ULC Act.  The
vesting of surplus land in the Government would take place
on issuance and publication of notices.  The manner in which
the surplus land was dealt with, is not before this Court.
This Court is concerned only with the non-surplus land,
which, the executing Court referred to as protected land.
      Once the Special Officer and Competent Authority
declares a particular area as within the ceiling limits
prescribed under the ULC Act, the declarant is entitled to use
it as per his wishes.  Hardly any restrictions can be placed.
Section 26 of the ULC Act is only to the effect that in case the
owner of such non-surplus land intends to sell or othewise
transfer it, the State Government shall have the first option to
purchase it, at the market value.  By its very nature, the
option provided for under Section 26 comes into play only
when the owner of the land expresses intention to sell it.  It
was not even alleged that respondent Nos.1 and 2 expressed
their intention to sell it.  Therefore, the question of the State
Government choosing to exercise its option to purchase it
does not arise.  At any rate, the petitioner does not figure
anywhere in the picture in a situation contemplated under
Section 26 of the ULC Act.  It is ultimately for the State
Government, not for the Land Acquisition Officer to take a
decision under Section 26 of the ULC Act.
      The petitioner is under a misconception that even where
the land is acquired by invoking the provisions of the LA Act,
Section 26 of the ULC Act comes into play.  One has to keep
in mind, the distinction between the voluntary transfers on
the one hand and involuntary transfers on the other hand.
The transfer that takes place as a result of initiation of
proceedings under the LA Act, is, beyond any pale of doubt,
an involuntary one.  The acquisition is done irrespective of
the intention of the owner, and many a time, in spite of the
opposition to it.  Therefore, occasion to invoke Section 26 of
the ULC Act, in the event of any transfer taking place as a
result of acquisition by invoking the provisions of the LA Act,
does not exist.
      The decree passed in O.P No. 94 of 1991 is modified by
this Court in common judgment dated 19-06-2006 in
C.C.C.A Nos.138 of 1999 and 170 of 2001 and has assumed  
finality, with the dismissal of S.L.P by the Honble Supreme
Court.  In clear and categorical terms, the trial Court as well
as this Court granted the relief of solatium, additional market
value and interest under the relevant provisions of the LA Act.
The acceptance of the contention of the petitioner by the
executing Court would have the effect of reviewing, if not
setting aside the order passed by this Court as confirmed by
the Honble Supreme Court in the S.L.P filed by the petitioner
itself.  Such a course is totally impermissible.  In addition to
that, the learned Presiding Officer of the executing Court has
referred to several judgments in support of his conclusion
that all the statutory benefits under the LA Act are extendable
to non-surplus lands, acquired by the Government.
      This Court does not find any reason to interfere with the
view taken by the executing Court.  The C.R.P is accordingly
dismissed.  The miscellaneous petitions filed in this revision
shall also stand disposed of.  There shall be no order as to
costs.
___________________________    
L. NARASIMHA REDDY, J    
18th July, 2014

suit for the relief of declaration of title and recovery of possession of the suit schedule property, being an apartment in the Prakashnagar Area of Secunderabad. Relief of execution of sale deed in respect of the property and re-registration thereof was also claimed. The trial Court decreed the suit through judgment dated 10-12-2009. - Appeal was also dismissed - Second Appeal - their lordships held that a Def. No.1/General power of attorney holder can not cancelled the Reg. Sale Deed executed by /Def.2 and 3 real owners infavour of plaintiff unilaterally with out the knowledge of plaintiff who is out of India - Nominal Sale deed can not be pleaded against the recitals of sale deed as per sec.91,92 of Indian Evidence act - only remedy of defendants is under sec.55 of T.P.Act - No bonafides on the plea of defendants - second appeal was dismissed = Second Appeal No.406 of 2014 15-07-2014 V. Chandramohan..appellant J. Venkatagopal and others..Respondents = 2014- July- Part - http://judis.nic.in/judis_andhra/filename=11789

 suit for the relief of declaration of title and recovery of possession of the suit schedule property, being an apartment in the Prakashnagar Area of Secunderabad.  Relief of execution of sale deed in respect of the property and re-registration thereof was also claimed.  The trial Court decreed the suit through judgment dated 10-12-2009. - Appeal was also dismissed - Second Appeal - their lordships held that a Def. No.1/General power of attorney holder can not cancelled the Reg. Sale Deed executed by /Def.2 and 3 real owners infavour of plaintiff unilaterally with out the knowledge of plaintiff who is out of India - Nominal Sale deed can not be pleaded against the recitals of sale deed as per sec.91,92 of Indian Evidence act - only remedy of defendants is under sec.55 of T.P.Act - No bonafides on the plea of defendants - second appeal was dismissed = 

The 1st defendant is not the owner of the property.
It was
defendants 2 and 3, that have executed Ex.A-1.
The participation
of the 1st defendant is only in his capacity as GPA of defendants
2 and 3.
Even the 1st defendant did not dispute the execution of
the sale deed.
His contention is that the sale deed was executed
on a nominal basis at the request of the plaintiff,
to enable him to raise the loans.
It is too broad or general a plea,
to be countenanced.  Neither the plaintiff was proved to be a
person in need of money, nor the 1st defendant proved himself,
to be a Good Samaritan, waiting for the opportunity to help others,
without expecting anything in return.
It has already been observed
that 1st defendant was not the owner of the property.  
The plea of
the plaintiff, that, being a resident of United States,
he left the keys with the defendants for completion of the left over
works in the premises; 
was not even rebutted by defendants 2 and
3.  The lack of bona fides on the part of the 1st defendant are
evident from the fact that, he unilaterally executed the deed of
cancellation of the sale deed, Ex.A-1.

      It was strongly argued on behalf of the 1st defendant that the
plaintiff did not pay any consideration at all, under Ex.A-1.  This runs
contrary to the recitals in Ex.A-1.  It is fairly established principle that
no oral evidence can be adduced, to rebut the contents of a
document.  Exception, if at all, can be in cases where the very
execution of the document is disputed.  Sections 91 and 92 of the
Evidence Act get attracted in situations of this nature.

      Assuming that there is any pigment of truth in the contention
of the 1st defendant, that the consideration mentioned in Ex.A-1,
or part of it remained unpaid, the only course open to him was to
pursue the remedy under Section 55 of the Act.  
Being a party to
the sale deed, he cannot dispute the transaction.  The trial Court
and the lower Appellate Court have taken the correct view of the
matter.

      No substantial question of law arises for consideration in this
Second Appeal.  It is accordingly dismissed.
      There shall be no order as to costs.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11789
THE HONBLE MR JUSTICE L. NARASIMHA REDDY          

Second Appeal No.406 of 2014

15-07-2014

V. Chandramohan..appellant

J. Venkatagopal and others..Respondents

Counsel for the appellant: Sri B. Vijaysen Reddy,

Counsel for the Respondents     : Sri V. Hariharan

<GIST:

>HEAD NOTE:  

?Cases referred

THE HONBLE MR JUSTICE L. NARASIMHA REDDY          

Second Appeal No.406 of 2014

ORDER:

      The 1st respondent filed O.S.No.111 of 2005 in the Court of
XII Senior Civil Judge, City Civil Court, Secunderabad, against the
appellant (defendant No.1), and respondents 2 and 3 for the relief
of declaration of title and recovery of possession of the suit
schedule property, being an apartment in the Prakashnagar Area
of Secunderabad.  Relief of execution of sale deed in respect of the
property and re-registration thereof was also claimed.  The trial
Court decreed the suit through judgment dated 10-12-2009.
Aggrieved by that, the 1st defendant filed A.S.No.24 of 2010, in the
Court of XXVII Additional Chief Judge, City Civil Court, Hyderabad.
The appeal was dismissed through judgment dated 07-02-2014.
Hence, this Second Appeal. For the sake of convenience,
the parties are referred to, as arrayed in the suit.

      Briefly stated the contents of the plaint are that the
1st defendant and defendants 2 and 3 constructed independent
portions in the premises bearing No.1-8-702 (50/2 RT), admeasuring
166.6 sq.yards, at Prakashnagar, and offered to sell them.  The
plaintiff stated that he paid the installments for the suit schedule
property, aggregating to Rs.2,94,000/- and a sale deed was
executed by the G.P.A., i.e. 1st defendant, on behalf of defendants
2 and 3.  He further pleaded that since the work was incomplete
on certain aspects, he handed over the key to the defendants,
since he was residing in U.S.  The defendants were said to have
been paying rents @ Rs.4,000/- per month to the plaintiff, but when
there was irregularity in payment, and when the plaintiff came to
know that the 1st defendant is making attempt to sell the property,
he made an attempt to secure encumbrance certificate, which, in
turn, revealed that the sale deed in favour of the plaintiff was
cancelled by the defendants.  Elaborating further, he prayed for
the relief of declaration of title, recovery of possession, re-
registration of the property.

      Defendants 2 and 3 remained ex parte.  The suit was
contested by the 1st defendant alone, i.e. present appellant.
His case was that the plaintiff contacted him through one,
R.S.Murthy and taking advantage of the acquaintance, the plaintiff
insisted that a sale deed in respect of the suit schedule property
be executed in his favour, to enable him to raise loans and
believing him, that he executed sale deed on 22-08-2001.  It was
stated that the sale deed was never intended to be acted upon
and the possession of the premises was never delivered to the
plaintiff.

      Sri B. Vijaysen Reddy, learned counsel for the appellant
submits that the trial Court has misread the evidence on record and
did not take into account, the circumstances under which, the sale
deed, Ex.A-1, came to be executed.  He submits that the plaintiff
was never in possession of the property and Ex.A-1 was only a
nominal document.  It is also his case that the lower Appellate
Court did not appreciate the matter from the correct perspective.

      Sri V. Hariharan, learned counsel for the respondents, on the
other hand, submits that the very fact that the actual owners of the
property, who executed the sale deed, viz., defendants 2 and 3,
did not contest the matter, discloses that the 1st defendant was not
fair in his dealings.  He contends that being the GPA, the
1st defendant cannot claim greater interest than his principals.
He further submits that once a sale deed is executed in
accordance with law, the title in respect of the property stands
transferred and a party to the document cannot deny its contents.
He further submits that in case the consideration in any sale deed is
due, the only course open to the concerned party is to seek
remedy under Section 55 of the Transfer of Property Act (for short
the Act) and not to dispute the sale deed itself.
      As observed earlier, the suit was filed by the sole plaintiff
against defendants 1 to 3.  The 1st defendant alone contested the
suit.  On the basis of the pleadings before it, the trial Court framed
the following issues for its consideration:
1.      Whether the plaintiff is the absolute owner of the suit
schedule property
2.      Whether the plaintiff is entitled for vacant possession
of the suit schedule property from the defendants?

      The plaintiff deposed as PW-1 and he filed Exs.A-1 to A-5.  The
1st defendant deposed as DW-1 and he filed Exs.B-1 and B-2.  The
suit was decreed and in A.S.No.24 of 2010, the lower Appellate
Court framed only one point for its consideration, viz., whether the
judgment and decree of the trial Court is sustainable in facts and
law, and the appeal was dismissed.

      The 1st defendant is not the owner of the property.  It was
defendants 2 and 3, that have executed Ex.A-1.  The participation
of the 1st defendant is only in his capacity as GPA of defendants
2 and 3.  Even the 1st defendant did not dispute the execution of
the sale deed.  His contention is that the sale deed was executed
on a nominal basis at the request of the plaintiff,
to enable him to raise the loans.  It is too broad or general a plea,
to be countenanced.  Neither the plaintiff was proved to be a
person in need of money, nor the 1st defendant proved himself,
to be a Good Samaritan, waiting for the opportunity to help others,
without expecting anything in return.  It has already been observed
that 1st defendant was not the owner of the property.  The plea of
the plaintiff, that, being a resident of United States,
he left the keys with the defendants for completion of the left over
works in the premises; was not even rebutted by defendants 2 and
3.  The lack of bona fides on the part of the 1st defendant are
evident from the fact that, he unilaterally executed the deed of
cancellation of the sale deed, Ex.A-1.

      It was strongly argued on behalf of the 1st defendant that the
plaintiff did not pay any consideration at all, under Ex.A-1.  This runs
contrary to the recitals in Ex.A-1.  It is fairly established principle that
no oral evidence can be adduced, to rebut the contents of a
document.  Exception, if at all, can be in cases where the very
execution of the document is disputed.  Sections 91 and 92 of the
Evidence Act get attracted in situations of this nature.

      Assuming that there is any pigment of truth in the contention
of the 1st defendant, that the consideration mentioned in Ex.A-1,
or part of it remained unpaid, the only course open to him was to
pursue the remedy under Section 55 of the Act.  Being a party to
the sale deed, he cannot dispute the transaction.  The trial Court
and the lower Appellate Court have taken the correct view of the
matter.

      No substantial question of law arises for consideration in this
Second Appeal.  It is accordingly dismissed.
      There shall be no order as to costs.
_______________________  
L. NARASIMHA REDDY, J.    
Dt.15-07-2014.

Monday, August 11, 2014

Kar Vivad Samadhan Scheme, 1998 - Pending Revision for the year 1997-98 filed an application under the scheme - with out passing orders in that application, first dismissed the revision and later dismissed this application - their lordships held that The approach of the 1st respondent is totally untenable, apart from being opposed to the letter and spirit of the Scheme. In a way, he has read certain aspects into the Scheme, which the parliament did not intend to. The mere fact that a revision, which was pending before him was dismissed, cannot constitute the basis to deny the relief under the Scheme. We have taken similar view in W.P.No.16170 of 2000 and batch. We, therefore, allow the writ petition and set aside the impugned order. =Writ Petition No.5358 of 1999 09-07-2014 East India Petroleum Limited.appellant. The Commissioner of Income Tax and another...Respondents = 2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11614

Kar Vivad Samadhan Scheme, 1998 - Pending Revision for the year 1997-98 filed an application under the scheme - with out passing orders in that application, first dismissed the revision and later dismissed this application - their lordships held that The approach of the 1st respondent is totally untenable, apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament did not intend to.  The mere fact that a revision, which was pending before him was dismissed, cannot constitute the basis to deny the relief under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch.  We, therefore, allow the writ petition and set aside the impugned order. =

In the assessment year 1997-98, the Assessing Authority passed
an order, dated 18.03.1998, taking the view that the sum covered by
prima facie adjustment of Rs.79,86,590/-, under Section 143(1)(a) of
the Income Tax Act, 1961 (for short the Act), was not proper, and
accordingly, made a demand of Rs.47,10,108/-, as tax.  Additional tax
of Rs.6,86,847/-, under Section 143(1)(a) of the Act and interest of
Rs.7,78,680/-, under Section 234B of the Act, was also demanded. =
When the revision was pending, the Parliament introduced Kar Vivad
Samadhan Scheme, 1998 (for short the Scheme), by amending the
Act.  It provided for the termination of the proceedings at the stage of
appeal, revision or writ petition, before any forum, in case the assessee
offers to pay the amount stipulated under the relevant provisions of the
Scheme.
With a view to avail the benefit under the Scheme, the petitioner
submitted an application in the prescribed form on 16.12.1998.
Incidentally, the 1st respondent is the designated authority to process
the application and he is the one, before whom the revision filed by the
petitioner was pending. The 1st respondent passed an order, dated
01.02.1999, in the revision, rejecting the claim of the petitioner.  Few
days thereafter, i.e. on 26.02.1999, he rejected the application, filed
under the Scheme.  This writ petition is filed challenging the order,
dated 26.02.1999.=

In the instant case, the 1st respondent was the authority to deal
with the application filed under the Scheme as well as to hear the
revision.  Knowing fully well that the application filed by the petitioner is
pending before him, he has chosen to take up the revision and
dismissed the same through order, dated 01.02.1999.  He cited the
dismissal thereof as a ground for refusing to extend the benefit under
the Scheme.  The approach of the 1st respondent is totally untenable,
apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament
did not intend to.  The mere fact that a revision, which was pending
before him was dismissed, cannot constitute the basis to deny the relief
under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch. 

2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11614

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND  THE HONBLE SRI JUSTICE CHALLA KODANDA RAM              

Writ Petition No.5358 of 1999

09-07-2014

East India Petroleum Limited.appellant.

The Commissioner of Income Tax and another...Respondents  

Counsel for appellant:  Sri K.Raji Reddy

Counsel for Respondents : Sri J.V.Prasad

<GIST:

>HEAD NOTE:  

?Cases referred

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY        

AND

THE HONBLE SRI JUSTICE CHALLA KODANDA RAM          


Writ Petition No.5358 of 1999

ORDER: (Per the Honble Sri Justice L.Narasimha Reddy)

      The petitioner is a Limited Company and is assessed to income
tax.  In the assessment year 1997-98, the Assessing Authority passed
an order, dated 18.03.1998, taking the view that the sum covered by
prima facie adjustment of Rs.79,86,590/-, under Section 143(1)(a) of
the Income Tax Act, 1961 (for short the Act), was not proper, and
accordingly, made a demand of Rs.47,10,108/-, as tax.  Additional tax
of Rs.6,86,847/-, under Section 143(1)(a) of the Act and interest of
Rs.7,78,680/-, under Section 234B of the Act, was also demanded. 

      The petitioner filed a revision under Section 264(3) of the Act,
before the Commissioner of Income Tax, the 1st respondent herein.
When the revision was pending, the Parliament introduced Kar Vivad
Samadhan Scheme, 1998 (for short the Scheme), by amending the  
Act.  It provided for the termination of the proceedings at the stage of
appeal, revision or writ petition, before any forum, in case the assessee
offers to pay the amount stipulated under the relevant provisions of the
Scheme.  

      With a view to avail the benefit under the Scheme, the petitioner
submitted an application in the prescribed form on 16.12.1998.
Incidentally, the 1st respondent is the designated authority to process
the application and he is the one, before whom the revision filed by the
petitioner was pending. The 1st respondent passed an order, dated
01.02.1999, in the revision, rejecting the claim of the petitioner.  Few
days thereafter, i.e. on 26.02.1999, he rejected the application, filed
under the Scheme.  This writ petition is filed challenging the order,
dated 26.02.1999.

      Heard Sri K.Raji Reddy, learned counsel for the petitioner, and
Sri J.V.Prasad, learned Standing Counsel for the respondents.

      The petitioner felt aggrieved by the order passed by the Income
Tax Authority, imposing tax, penalty and interest on a sum covered by
prima facie adjustment.  The remedy of revision under Section 264(3) of
the Act, was availed before the 1st respondent.  During the pendency of
that revision, the Scheme came into force.  Accordingly, an application
was filed in the prescribed form.

      One of the conditions for extending the benefit under the
Scheme is that a revision, appeal or proceedings must be pending
before the Authorities or Tribunal, created under the Act, or High Court
or Supreme Court.  That condition stood fulfilled, on account of the
pendnecy of the revision before the 1st respondent.  A perusal of the
Scheme discloses that the extension of benefit thereunder is
independent of merits, or otherwise of the claims in the appeals,
revision or other proceedings.  Further, once it emerges that an appeal,
revision or other proceedings were pending by the time the application
was filed, it hardly makes any difference, if such proceedings are
terminated by the concerned authority, unmindful of the pendency of
the application.

      In the instant case, the 1st respondent was the authority to deal
with the application filed under the Scheme as well as to hear the
revision.  Knowing fully well that the application filed by the petitioner is
pending before him, he has chosen to take up the revision and
dismissed the same through order, dated 01.02.1999.  He cited the
dismissal thereof as a ground for refusing to extend the benefit under
the Scheme.  The approach of the 1st respondent is totally untenable,
apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament
did not intend to.  The mere fact that a revision, which was pending
before him was dismissed, cannot constitute the basis to deny the relief
under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch. 

      We, therefore, allow the writ petition and set aside the impugned
order.  There shall be no order as to costs.

      The miscellaneous petition filed in this writ petition shall also
stand disposed of.
____________________  
L.NARASIMHA REDDY, J.    
____________________  
CHALLA KODANDA RAM, J.    
Date:09.07.2014

Income tax sec.36 - claimed certain benefits for the years 1989-90 & 1990-91 - Rs.3 lakhs for as revenue expenditure and another claim - exemption from payment of interest on the loan borrowed - ITAO discarded the first as Rs.3 lakhs was spent for constructions, it should be treated as capital expenditure and another claim was rejected as the borrowed amount was spent for sister concern but not this Hotel - Appeal was allowed by commissioner , Tribunal too dismissed the Revenue second appeals - their Lordships held that commissioner and Tribunal both failed to consider that the Building is owned or leased and failed to consider whether the construction work was permanent or semi permanent and failed to consider that whether the assessment becomes final or not and as such remand the case to the Tribunal for fresh disposal = I.T.T.A. Nos. 87 of 2001 and batch 01-07-2014 The Commissioner of Income Tax.... APPELLANT M/s.Hotel Krishna, Lakdikapul, Hyd....RESPONDENT = 2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11595

Income tax sec.36 - claimed certain benefits for the years 1989-90 & 1990-91 - Rs.3 lakhs for as revenue expenditure and another claim - exemption from payment of interest on the loan borrowed - ITAO discarded the first as Rs.3 lakhs was spent for constructions, it should be treated as capital expenditure and another claim was rejected as the borrowed amount was spent for sister concern but not this Hotel - Appeal was allowed by commissioner , Tribunal too dismissed the Revenue second appeals - their Lordships held that commissioner and Tribunal both failed to consider that the Building is owned or leased and failed to consider whether the construction work was permanent or semi permanent and failed to consider that whether the assessment becomes final or not and as such remand the case to the Tribunal for fresh disposal = 

In the assessment years 1989-90 and 1990-91, 
it claimed
certain benefits under the Income Tax Act, 1961 (for short the
Tribunal).
The first is about treating a sum of Rs.3,00,000/- as
revenue expenditure.
The second is about the exemption from
payment of interest on the loan borrowed by it. =

The Income Tax
Officer (I.T.O.) took the view that the amount of Rs.3,00,000/-
spent by the respondent was for construction and that it deserves
to be treated as capital expenditure.
On the second aspect, the
I.T.O. took the view that the respondent, no doubt, borrowed the
amount, but has passed on the same to its sister concern and
thereby, it is not entitled to deduct the interest paid on the loan.=

Two questions arise for consideration.
The first is as to
whether the respondent was entitled to deduct the interest paid
on the loans borrowed by it, in its profit and loss accounts.
The
second is as to how the sum of Rs.3,00,000/- spent by the
respondent for construction of rooms, be treated.
     Section 36 of the Act provides for deductions of various
categories, from the income.
The interest paid on the loans is
one such deduction.
To qualify for such deduction, the borrowed
amount must be spent for the business or the profession of the
assessee.  
The explanation appended to Section 36 (iii) of the Act
provides guidance in this behalf.

The I.T.O. did not allow the deduction by observing that the
borrowed amount was just passed on to the sister concern of the
respondent and it was not spent for the business or the
profession.  
The Appellate Commissioner, however, has reversed
that finding.
In the further appeal preferred by the Revenue, the
only factor that weighed with the Tribunal was that an order
pertaining to the assessment year 1988-89 passed by the 
Commissioner may have become final.  
Even this opinion was not
formed after thorough verification of the records.
 It was almost on the assumptions.
 Relevant portion reads as under:

       Both parties have not pointed out at the time of
hearing that the Revenue has filed any appeal against the
order of the Commissioner (Appeals) for assessment year 
1989-90 ( there appears to be typographical mistake in this
behalf and the correct assessment year is 1988-89), dated
03.03.1994 in I.T.A.No.291/AC 1 (1)/CIT(A)-I/91-92 in the
assessees own case on the basis of which the claim of the
assessee has been accepted.    

         The rectification order passed by the I.T.O. under Section
154 of the Act to give effect the order of the Commissioner was
also taken note of.

      During the course of hearing, the learned Senior Standing
Counsel has placed before us, a copy of the order, dated
02.03.2000, passed by the Tribunal in I.T.A.No.811/Hyd/1994.
 It
is in relation to the assessment year 1988-89 and the Tribunal
has reversed the order passed by the Commissioner. 
 Had this
been taken note of by the Tribunal, when it decided the present
appeals before it, things would have been different altogether.

We are of the view that the matter needs to be examined by the
Tribunal with reference to the relevant record, duly giving
opportunity to both the parties.
      Coming to the second question,
the Tribunal has simply
concurred with the view expressed by the Commissioner just by
taking into account, the claim made by the respondent for the
assessment year 1982-83 and the fact that the cost of
construction incurred by it be treated as revenue expenditure was
accepted.  
Beyond that, no discussion whatever was undertaken.
Things would have been different in case the Commissioner has
undertaken any discussion with reference to the relevant
provisions of law and the facts pleaded by the parties.
There
again, he just referred to the claim and treated it as revenue
expenditure.
The purport of Explanation-1 to Section 32 of the
Act was not discussed at all.  
It was obligatory on the part of the
Commissioner, or for that matter, the Tribunal, to examine
whether the building in question was owned by the respondent or
was taken on lease and whether the construction undertaken by it
was permanent or semi-permanent in nature.
We feel that even
this question needs to be addressed by the Tribunal, in detail.

      Hence, we allow the appeals and remand the matters to the
Tribunal for fresh consideration and disposal after giving
opportunity to both the parties. There shall be no order as to
costs.

2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11595

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY and THE HONBLE SRI JUSTICE CHALLA KODANDA RAM          
               
I.T.T.A. Nos. 87 of 2001 and batch

01-07-2014

The Commissioner of Income Tax.... APPELLANT  
       
M/s.Hotel Krishna, Lakdikapul, Hyd....RESPONDENT  
       
<Gist:

>Head Note:

COUNSEL FOR THE APPELLANT:- Sri S.R.Ashok      

COUNSEL FOR RESPONDENT:-Sri A.V.Krishna Koundinya        


?Cases Referred:

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY        

AND

THE HONBLE SRI JUSTICE CHALLA KODANDA RAM          

I.T.T.A. Nos. 87 and 119 of 2001


COMMON JUDGMENT: (per the Honble Sri Justice L.Narasimha Reddy)    

      These two appeals arise out of a common order, dated
20.12.2000, passed by the Income Tax Appellate Tribunal,
Hyderabad Bench A (for short the Tribunal) in
I.T.A.Nos.1303/Hyd/1994 and 1304/Hyd/1994.  The Tribunal was
dealing with the matters pertaining to the assessment years
1989-90 and 1990-91 vis--vis the respondent.

      The respondent is a hotel establishment and is assessed to
tax.  In the assessment years 1989-90 and 1990-91, it claimed
certain benefits under the Income Tax Act, 1961 (for short the
Tribunal).  The first is about treating a sum of Rs.3,00,000/- as
revenue expenditure.  The second is about the exemption from
payment of interest on the loan borrowed by it. The Income Tax
Officer (I.T.O.) took the view that the amount of Rs.3,00,000/-
spent by the respondent was for construction and that it deserves
to be treated as capital expenditure.  On the second aspect, the
I.T.O. took the view that the respondent, no doubt, borrowed the
amount, but has passed on the same to its sister concern and
thereby, it is not entitled to deduct the interest paid on the loan.
      The respondent carried the matter in appeals before the
Income Tax Commissioner (Appeals)-I, Hyderabad (for short the
Commissioner).  The appeals were allowed through order, dated
03.03.1994.  Aggrieved by that, the Revenue filed two appeals i.e.
I.T.A.Nos1303/Hyd/1994 and 1304/Hyd/1994 before the Tribunal. 
Both the appeals were dismissed through common order, dated  
20.12.2000.

      In I.T.T.A.No.87 of 2001, only one substantial question of
law is framed, namely;
       Whether on the facts and in the circumstances of
the case, the Appellate Tribunal is justified in upholding the
deletion of disallowance on account of interest payments in
spite of clinching material establishing diversion of the
borrowed funds for un-fruitful and non-commercial
purposes? 

      In I.T.T.A.No.119 of 2001, the following questions are
framed:

(A)     Whether on the facts and in the circumstances of the case, the
Appellate Tribunal is justified in upholding the deletion of
disallowance on account of interest payments in spite of
clinching material establishing diversion of the borrowed funds
for un-fruitful and non-commercial purposes?
(B)     Whether the appellate Tribunal is justified in holding that the
amount incurred on construction of building meant for its
commercial use, partakes the character of Revenue
expenditure and deductable from the income?
(C)     Whether on the facts and in the circumstances of the case, the
Appellate Tribunal is justified in holding that the disallowance
on account of interest payments are liable to be granted in spite
of clinching evidence establishing diversion of the borrowed
funds for un-fruitful and non-commercial purposes?

      The only question framed in I.T.T.A.No.87 of 2001 and
Question Nos. A and C framed in I.T.T.A.No.119 of 2001
pertain to one area of controversy and Question No. B pertains
to another.

      Sri S.R.Ashok, learned Senior Standing Counsel for the
Income Tax, submits that the Tribunal did not undertake any
discussion on various aspects urged before it and simply on the
ground that there is no information as to whether an appeal was
preferred by the Revenue against the order passed by the
Commissioner, both the appeals were dismissed.  He submits
that the record discloses that the order, dated 02.12.1993, passed
by the Commissioner was the subject matter of
I.T.A.No.811/Hyd/1994 and that the appeal has been allowed
through order, dated 02.03.2000.  He further submits that the
view taken by the Commissioner about the deduction of interest
paid on loans cannot be sustained in law, since the assessee
failed to establish that the amount was used for the business or
profession. It is also urged that the Tribunal erred in treating the
order passed by the Commissioner for the assessment year
1982-83 in relation to a construction, as constituting the basis for
treating the amount of Rs.3,00,000/- as Revenue Expenditure.
According to him, this runs contrary to Explanation-1 to Section
32 of the Act.

      Sri A.V.Krishna Koundinya, learned Senior Counsel for the
respondent, on the other hand, submits that the loan was
borrowed by the respondent, long ago, and for various years, the
interest paid thereon was permitted to be deducted.  He contends
that the Appellate Commissioner has taken into account, the fact
that the amount borrowed was utilised for the business
undertaken by the respondent and that the said question of fact
cannot be reopened before the Tribunal.  He further submits that
the expenditure of Rs.3,00,000/- was only for a temporary
alteration of the premises and it cannot be treated as capital
expenditure.

      Two questions arise for consideration.  The first is as to
whether the respondent was entitled to deduct the interest paid
on the loans borrowed by it, in its profit and loss accounts.  The
second is as to how the sum of Rs.3,00,000/- spent by the
respondent for construction of rooms, be treated.

      Section 36 of the Act provides for deductions of various
categories, from the income.  The interest paid on the loans is
one such deduction.  To qualify for such deduction, the borrowed
amount must be spent for the business or the profession of the
assessee.  The explanation appended to Section 36 (iii) of the Act
provides guidance in this behalf.

      The I.T.O. did not allow the deduction by observing that the
borrowed amount was just passed on to the sister concern of the
respondent and it was not spent for the business or the
profession.  The Appellate Commissioner, however, has reversed
that finding. In the further appeal preferred by the Revenue, the
only factor that weighed with the Tribunal was that an order
pertaining to the assessment year 1988-89 passed by the
Commissioner may have become final.  Even this opinion was not
formed after thorough verification of the records.  It was almost on
the assumptions.  Relevant portion reads as under:

       Both parties have not pointed out at the time of
hearing that the Revenue has filed any appeal against the
order of the Commissioner (Appeals) for assessment year
1989-90 ( there appears to be typographical mistake in this
behalf and the correct assessment year is 1988-89), dated
03.03.1994 in I.T.A.No.291/AC 1 (1)/CIT(A)-I/91-92 in the
assessees own case on the basis of which the claim of the
assessee has been accepted.  

      The rectification order passed by the I.T.O. under Section
154 of the Act to give effect the order of the Commissioner was
also taken note of.

      During the course of hearing, the learned Senior Standing
Counsel has placed before us, a copy of the order, dated
02.03.2000, passed by the Tribunal in I.T.A.No.811/Hyd/1994.  It
is in relation to the assessment year 1988-89 and the Tribunal
has reversed the order passed by the Commissioner.  Had this
been taken note of by the Tribunal, when it decided the present
appeals before it, things would have been different altogether.
We are of the view that the matter needs to be examined by the
Tribunal with reference to the relevant record, duly giving
opportunity to both the parties.

      Coming to the second question, the Tribunal has simply
concurred with the view expressed by the Commissioner just by
taking into account, the claim made by the respondent for the
assessment year 1982-83 and the fact that the cost of
construction incurred by it be treated as revenue expenditure was
accepted.  Beyond that, no discussion whatever was undertaken.
Things would have been different in case the Commissioner has
undertaken any discussion with reference to the relevant
provisions of law and the facts pleaded by the parties.  There
again, he just referred to the claim and treated it as revenue
expenditure.  The purport of Explanation-1 to Section 32 of the
Act was not discussed at all.  It was obligatory on the part of the
Commissioner, or for that matter, the Tribunal, to examine
whether the building in question was owned by the respondent or
was taken on lease and whether the construction undertaken by it
was permanent or semi-permanent in nature.  We feel that even
this question needs to be addressed by the Tribunal, in detail.

      Hence, we allow the appeals and remand the matters to the
Tribunal for fresh consideration and disposal after giving
opportunity to both the parties. There shall be no order as to
costs.

      The miscellaneous petitions in these appeals shall also
stand disposed of.
_____________________  
L.NARASIMHA REDDY,J    
_______________________  
CHALLA KODANDA RAM,J      
Dt:01.07.2014