Judgment:
ORDER
P.S. Narayana, J.
1. Sri Satyanarayana Reddy, learned Counsel representing the revision petitioner; made the following submissions :
2. The learned Counsel would maintain that the revision petitioner is an unfortunate tenant, hereinafter referred to as tenant, who had been successful in the prior litigation which was filed on the ground of wilful default by the self-same landlord, relating to the schedule premises and again on the self-same ground, the present eviction petition had been thought of by the respondent, hereinafter referred to as landlord, for the purpose of convenience. The learned Counsel also would 'maintain that the explanation given by the tenant is so natural and convincing that in view of the longstanding intimacy between the parties, quite often at irregular intervals, he had been collecting rents and subsequent thereto just to make it a ground for eviction, the landlord was reluctant to receive the rents. The learned Counsel would also explain that the landlord had not entered into the witness box. Apart from the said aspect of the matter, none having at least the knowledge about the state of affairs had been examined on behalf of the landlord and in the light of the same, the findings recorded by both the Courts below on the aspect of wilful default, cannot be sustained, inasmuch as there is no evidence forthcoming on behalf of the landlord and hence adverse inference may have to be drawn. The learned Counsel placed strong reliance on the decisions in Vidyadhar v. Manikrao, : [1999]1SCR1168 and Gulla Kharagjit v. Narsingh Nandkishore Rawat, : AIR1970MP225 .
3. Per contra, Sri Vijay Kumar Heroor, learned Counsel representing respondent-landlord made the following submissions :
4. The learned Counsel would maintain that the concurrent findings had been recorded by the Courts below on the ground of wilful default and the mere fact that the landlord was not examined would not alter the situation in any way for the reason that even the amounts which were found due were paid after inordinate delay and this conduct of the tenant itself would establish wilful default. The learned Counsel also would further contend that even otherwise when the landlord was reluctant, in receiving the rents, the tenant ought to have followed the procedure contemplated under the Act and in the absence of the same, it may have to be taken that the ground of wilful default had been established. Further, the Counsel would maintain before this Court that the landlord moved CMP No. 5927 of 2005 praying for a direction to the tenant to pay the rents from March 2005 in respect of schedule mulgi and in the event of his failure to pay the same, stop all further proceedings and make the order of eviction. The learned Counsel also would submit that specific averments were made in Para 4 of the affidavit and no counter-affidavit is forthcoming denying the said averments and in the light of the subsequent events also, if the conduct of the tenant is appreciated, the same would amount to wilful default and hence, the findings of the Courts below need not be disturbed.
5. Heard both the Counsel and perused the oral and documentary evidence available on record and the findings recorded by the learned Rent Controller and also the Appellate Authority.
6. The landlord filed R.C. No. 299 of 1998 on the file of the learned Principal Rent Controller, Hyderabad praying for eviction on the ground of wilful default. The landlord in R.C. No. 299 of 1998, as petitioner therein, pleaded that the tenant has been in occupation of the schedule mulgi on a monthly rent of Rs. 400/-, exclusive of electricity charges and the tenancy is oral and the monthly rent payable was on or before 5th of each succeeding month and the tenant is also liable to pay property tax as per the demand of the Municipal Corporation of Hyderabad. Whenever the rents were paid, rent receipts were passed. It was further pleaded by the landlord that the tenant committed default in payment of monthly rent and the landlord filed R.C. No. 667 of 1993 for eviction on the ground of wilful default and also for subletting and the said petition was dismissed and the matter was carried by way of appeal R.A. No. 368 of 1996. It was further pleaded' that during the pendency of the eviction petition RC No. 667 of 1993, the tenant was not regular in payment of monthly rents and even during the pendency of the appeal, he had fallen into huge arrears and thus he became a wilful defaulter.
7. The tenant filed a counter-affidavit denying the allegations. The tenant had taken a specific stand that earlier an unsuccessful attempt was made by the landlord to evict him on the self-same ground, no doubt, along with certain other grounds and the relief had been negatived. It was specifically pleaded that though he made attempts to pay the rents, the landlord was not inclined to receive the rents only with a view to make him a defaulter. It was further pleaded that in view of the fact that the landlord preferred RA No. 368 of 1996 and the same also was dismissed confirming the order of the learned Rent Controller. During the said period, the rents became unpaid. It was also further pleaded that as a tenant he is duly bound to pay the rents and he is ready and willing to pay the rents.
8. The learned Rent Controller framed the following point for consideration :
'The point for consideration is whether the petitioner is entitled for eviction of respondent on the ground of wilful default in payment of rents ?'
9. The landlord was not examined and the evidence on behalf of the landlord is shown as 'nil'. The tenant examined himself as RW-1 and RW-2 also was examined. Ex.R-1 certified copy of the order in RC No. 667 of 1993, Exs.R-2 and R-3 triplicate challans dated 6-12-1996 and Exs.R-4 and R-5 receipts dated 30-3-2001 and 18-9-2001 were marked.
10. On appreciation of the evidence available on record, the learned Rent Controller came to the conclusion that the ground of wilful default was established and ordered eviction. Aggrieved by the same, the tenant carried the matter by way of appeal RA No. 34 of 2002 on the file of the learned Additional Chief Judge, City Small Causes Court, Hyderabad-the Appellate Authority and the learned Judge, after framing the point for consideration at Para 8, had discussed the oral and documentary evidence commencing from Paras 9 to 11 and ultimately dismissed the appeal. Aggrieved by the same, the present civil revision petition is preferred.
11. The learned Counsel representing the tenant-revision petitioner placed strong reliance on Vidyadhar's case (supra) wherein on the aspect of the party not entering into the witness box and an adverse inference to be drawn, observed at Para 16 as hereunder :
'Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom. 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, : AIR1970MP225 , also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, : AIR1971All29 , held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.'
12. Reliance was also placed on Santhosh Kumar Agarwal's case (supra).
13. There cannot be any doubt or controversy relating to this proposition. It is true that the party or the person having knowledge about the facts of the case may have to enter into the witness box to depose about the facts of the case. Much stress had been made by the learned Counsel representing the landlord on the non-following of the procedure under the Act during the period and also the conduct of the tenant in continuing default, even at present, it is clearly reflected from the affidavit filed in support of the application CMP No. 5927 of 2005 which may have to be taken into consideration and coupled with the same in view of the concurrent findings recorded by both the Courts below, the non-examination of the landlord may not alter the situation in any way. This appears to be the stand taken by the landlord. The factual matrix as reflected from the pleadings already had been referred to supra. It is needless to say that the default in payment of rents may not always amount to wilful default and it may be that in several of the cases, the contesting tenants would be coming up with some explanation or the other, which may be bona fide or even otherwise.
14. Rent control proceedings are no doubt summary proceedings. The A.P. Buildings (Lease, Rent and Eviction) Control Rules 1961 were made in exercise of the powers conferred under Sub-sections (1), (2) and (3) of Section 30 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. Rule 8(1) of the aforesaid Rules reads as under :
'When an application under the Act is presented to the Controller he shall fix the date on which and the place at which the enquiry in respect of the application will be held and send notice thereof to the applicant or applicants and the respondent or respondents mentioned in the application and shall send a copy of the application along with the notice to the respondent or respondents.'
Sub-rule (2) of Rule 8 of the aforesaid Rules specifies that the Controller shall give to the parties a reasonable opportunity to state their case and also record a brief note of the evidence of the parties and witnesses, if any, examined on either side and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties, pass orders on the application. Much emphasis was laid on the words 'brief note of the evidence of the parties and witnesses, if any'. The words 'if any' are applicable both to the parties and the witnesses. Be that as it may, this is a matter more concerned with the appreciation of evidence in a summary proceeding. Examination of the parties or persons having knowledge of the facts and what nature of evidence to be let in, it is for the parties to choose and decide and on appreciation of evidence when the Court is satisfied with the documentary evidence placed or the admissions made or the respective pleadings of the parties and the conduct of the parties and the other material which had been placed by the opposite party by itself may be sufficient to establish the ground, non-examination of the landlord may not assume much importance. But there may be cases where the tenant may come up with some explanation, which may not be bona fide always. But when there is some element of doubt, especially when a ground like wilful default had been made a ground, that too, when the landlord was unsuccessful in a prior litigation on the selfsame ground, it would be always just and desirable that the landlord either to examine himself or to let in some evidence in this regard. It may be that the stand taken by the tenant may be a bona fide stand or may not be a bona fide stand. But, however, some convincing and acceptable evidence in this regard may be definitely essential. The right of the landlord or landlady to recover possession or the ancillary reliefs, equally, the right of the tenant to resist the same, would be involved in a rent control proceedings. It is true that the principle of drawing an adverse inference for non-examination of a party would be equally applicable even to the rent control proceeding, despite the fact that these are summary proceedings. Hence, in view of the facts and circumstances though an application had been moved before this Court in the light of the fact that the landlord was unsuccessful in a prior litigation, taking the other facts into consideration, this Court of the considered opinion that to repel the explanation given by the tenant, the landlord either should have examined himself or at least should have examined the persons having knowledge about the facts of the case. No hard and fast rule can be laid down in this regard. As already referred to supra, there may be cases where on the consideration of the clear admissions made by the parties or the clear documentary evidence available on record, subsequent events or the like, the examination or non-examination of the party may not assume much importance. However, the Rent Controllers to adopt quite a cautious approach in evaluating the evidence, especially where there is nil evidence on the part of a particular party. It is made clear that despite these are summary proceedings it would be always desirable to examine the party or the persons having knowledge about the facts of the case. No doubt, this rule may not be made as a general rule. There may be exceptions and this Court is of the considered opinion that when the tenant is coming up with some explanation, the landlord, to repel such explanation may have to adduce some evidence especially when the landlord had fought one round of litigation and again fighting yet another round of litigation on the selfsame ground, may be for subsequent period. Hence, this Court is of the considered opinion that despite the elaborate submissions made by Sri Vijay Kumar Heroor, the impugned order cannot be sustained and accordingly the order made by the Appellate Authority in R.A. No. 34 of 2002 is hereby set aside and the matter is remitted to the Appellate Authority, and the Appellate Authority shall give opportunity to both the parties to let in further evidence especially in the light of the explanation offered by the tenant and pass appropriate orders in this regard within a period of two months from the date of receipt of this order. The civil revision petition is accordingly allowed to the extent indicated above. No order as to costs.