@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashThe respondent in the Civil Revision Petition filed u/s 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act,
1960, in short referred to as ""Act"" hereinafter, is the landlord and the petitioner in R.C.C.No. 1/93 on the file of Rent Controller-District Munsif,
Bheemunipatnam. The Revision Petitioners are tenants and the legal representatives of the tenants since certain parties died pending litigation.
2. For the purpose of convenience, the parties will be referred to as ""landlord"" and ""tenants"".
3. The landlord filed R.C.C.No. 1/93 as petitioner in the said R.C.C. seeking the relief of eviction of the tenants pleading in the eviction petition as
follows:
The petitioner herein is the owner of the petition schedule property for which he has been regularly paying the taxes on the property to the
Bheemunipatnam Municipality under Assessment No. 259 and the said schedule building was given on lease under a registered lease deed dated
1-7-1940 to one Kaligotla Suryanarayana on a monthly rent of Rs. 2.13 annas and in or about 1974, the said Suryanarayana died and the
respondents herein being the legal heirs of the deceased attorned to the petitioner as tenants. It is also contended that subsequent to the death of
the original tenant, the respondents have not been paying the rents regularly and also developed an evil intention of making several structural
modifications and alterations to the building to suit their convenience without the written consent and knowledge of the petitioner herein though it
was recited in the registered lease deed that the tenants shall not make any additions, structural alterations or modifications to the existing building
without the previous written consent of the landlord. It is also contended that late K. Suryanarayana, who was the original tenant, was the
Chairman of Bheemunipatnam Municipality. Taking advantage of his position and also the fact that the petitioner was a minor, had made certain
structural alterations and additions. It is also contended that the late Suryanarayana and also the respondents herein have made extensive
modifications to the said building and to the North of the original schedule premises as contained in the lease deed three more rooms are put up
and likewise on the Southern side they have extended the building by raising the compound wall further and constructed three rooms and two
toilets/bathrooms and they have also constructed two bath rooms on the Eastern side adjoining the wall and by the side of the toilets and to further
North-East the respondents have started constructing two more big rooms and a toilet and bathroom inside and they have also put up a staircase
for going to the first floor and the respondents have been treating the property as it is their own and have been making all the structural changes,
additions and modifications. It is also contended that there is a lot of vacant site around the building which could have been developed by the
petitioner in a more gainful fashion according to his taste and to suit his convenience is otherwise wasted and the said constructions raised by the
respondents have materially impaired the utility and the value of the main structure that was leased out. It is also contended that the respondents
have failed to pay the rents from 1-1-1983 and the respondents herein let out the petition schedule property to some tenants on huge rents and
they are collecting and enjoying the said property and the other smaller house which is situated on the Northern side of the schedule property is
being used by the respondents themselves. It is also contended that the petitioner herein has four sons and two daughters and the petitioner shall
have to provide each of them their own premises to enable them to live independently therein and the sons of the petitioner intend to start their own
business and the petition schedule premises is situate in the centre of the market at Bheemunipatnam and is ideally suited for locating business,
therefor, requires the said petition schedule property for his own personal use and occupation. It is also contended that the petitioner herein got
issued a registered lawyer''s notice on 4-1-1993 to the respondents and the respondents also got issued a common reply on 21-1-1993 with false
allegations.
4. The said eviction petition was resisted and the 4th respondent in R.C.C.No. 1/93 who is also the 4th respondent before this Court had filed a
counter, which was adopted by respondents 1, 2 and 3 in the said R.C.C. All the material allegations were denied. It was also stated that if the
tenants had not paid the rents subsequent to the demise of A. Suryanarayana, the landlord might have taken some action against them and he had
not given any notice demanding rents and the tenants have been paying rents upto date and the conditions in the lease deed have been relaxed by
the father of the landlord and also by the landlord from time to time for the purpose of additional accommodation. It was also stated that their
father had been in possession and enjoyment of the leasehold property even prior to the purchase of the same by the father of the landlord from his
vendor and while matters stood thus the landlords had constructed a cinema theatre by name Srinivasa Theatre and the petitioner had also installed
Southern side and a Cal-gas godown towards Northern side and thereby causing lot of nuisance and sound pollution and causing unbearable
inconvenience to the peaceful living of the tenants in the petition schedule property and when they had raised a dispute, the landlord even suggested
an amicable settlement by according permission to construct some more living rooms in addition to the original property for the convenient living of
the tenants at their own cost. It was also pleaded that they had paid the rents till December 1992 and the landlord was in the habit of collecting
rents from them very regularly and it was also pleaded that the landlord borrowed an amount of Rs. 5000/- from the 4th Revision Petitioner as a
hand loan and the same was not repaid. As there was no default in the payment of rents, Clause 13 of the lease deed is not applicable at all. It was
also stated that the petition itself is not maintainable as the landlord had waited till the construction virtually came to an end with an ulterior motive
only and he had also filed a suit and obtained urgent relief and the cause of action specified in the suit also is not correct and they have not let out
any portion of the house and the same is in their occupation. It was also pleaded that the landlord demanded an amount of Rs. 50,000/- for the
consent which he had already given for the constructions and the tenants had refused to comply with the said demand and hence a registered notice
dated 4-1-1993 was issued.
5. On the strength of the respective pleadings of the parties, the landlord had examined himself as P.W.1 and the 4th Revision Petitioner herein was
examined as R.W.1 and the 3rd Revision Petitioner in the said R.C.C. was examined as R.W.2 and Exs. A-1 to A-10, Ex. C-1 and also Ex. R-1
was marked. The learned Rent Controller after appreciating the oral and documentary evidence had arrived at a conclusion that none of the
grounds had been established by the landlord and had dismissed R.C.C. No. 1/93 by an order dated 22-4-1997 and aggrieved by the same, the
landlord had preferred an appeal R.C.A.No. 42/97 on the file of the Rent Control appellate authority-Senior Civil Judge, Visakhapamam wherein
the appellate authority had affirmed the findings of the learned Rent Controller relating to the grounds of wilful default and sub-letting, but however
reversed the findings relating to bona fide requirement and also acts of waste and had ultimately allowed the appeal ordering eviction and aggrieved
by the same, the tenants had preferred the present Revision u/s 22 of the Act.
6. Sri Koka Raghava Rao, the learned counsel representing the Revision Petitioners had strenuously contended that though the concurrent findings
recorded by both the Courts below can also be agitated by the landlord in the Civil Revision Petition filed by them, the reasons recorded by both
the Courts below in confirming the findings relating to wilful default and subletting are cogent and convincing and hence elaborate submissions need
not be advanced in relation to these grounds since the reasons recorded by the Courts below by themselves are self-explanatory. The learned
counsel coming to the aspect of bona fide requirement had contended that the pleadings are vague. No particulars had been furnished and hence
the ground of bona fide requirement had not been established at all. The learned counsel also had contended that a person in possession of a non-
residential building cannot seek eviction of another building for non-residential purpose. The learned counsel had also contended that it is not a
case of additional accommodation and the tenancy being for a specified period, along with Section 10(3)(c) of the Act, Section 10(3)(d) also may
have to be looked into. The learned counsel also had contended that as far as the ground of acts of waste is concerned, unless the value or utility of
the building is impaired, the acts cannot be said to be acts of waste. The learned counsel also had pointed out that certain constructions were made
during the life time of the father, who died even in the year 1974 and the additions made are for the better utility of the building and virtually it is an
improvement and hence it cannot be said that such acts fall under the ground of acts of waste. The learned counsel had drawn my attention to the
findings recorded in this regard. It was further contended that as far as the tenant securing alternative accommodation is concerned, except a
passing observation at paragraph-20 of the order of the appellate authority while deciding Point No. 2 - bona fide personal occupation, this was
not raised as a specific ground nor it was decided as a point for determination at all and hence the ground of additional accommodation cannot be
urged as a ground for seeking eviction at the stage of Revision. The learned counsel also had placed reliance on Vidyavathi Bai v. Shankerlal 1987
(2) ALT 550 (F.B.), Kollipara Pardhasaradhi Nageswara Rao v. Alamuri Venkataratnam 1985 (1) APLJ 332, Sona Optics Vs. Shyam
Sunderbhargava and Others, . The learned counsel also had contended that inasmuch as the constructions are permitted, it can be taken that the
terms and conditions specified in the document had been waived by the landlord.
7. Sri Ram Gopal, the learned counsel for the respondent-landlord had strenuously contended that though the evidence available on record in
respect of sub-letting is not satisfactory, as far as wilful default is concerned, both the Courts had totally erred in recording adverse finding and
even without filing an independent Civil Revision Petition, such adverse findings can be questioned even in this Civil Revision Petition. The learned
counsel placed reliance on V.V. Krishna Vara Prasad Vs. S. Surya Rao and Others, , Bysani Brahmayya and Another Vs. Pratap Rama Krishna
Murthy, . The learned counsel had drawn my attention to the evidence of R.W.1 and R.W.2 and had submitted that the procedure had not been
followed and the admissions made by both R.W.1 and R.W.2 will be sufficient to hold that the tenants in fact had committed wilful default. The
learned counsel had placed reliance on Kamala Bai and Others Vs. E. Rajeswari, , Kodangi Sethu Madhava Rao and others Vs. Chakka Prabhar
Rao and another, , M. Bhaskar Vs. J. Venkatarama Naidu, Represented by his Power of Attorney Holder A. Narayanaswamy Naidu, , J.
Pushpalatha Devi (died) by LRs. Vs. Shyam Sundar and others, . The learned counsel also had strenuously contended that in fact securing
alternative accommodation had been pleaded as a ground and though specifically it was not decided as a separate point, such ground also is
available to him and the landlord is entitled to the relief of eviction on that ground alone. The learned counsel had placed reliance on Champalal
Bhandari Vs. Smt. Mayadevi, , M. Ravinder Raju Vs. S. Bansilal, , KVSS Prasada Rao Vs. Godavari Bai and Others, . The learned counsel also
had further contended that the bona fide personal requirement had been clearly established by the landlord and on the material available, the
appellate authority had recorded detailed findings relating to this ground and hence such a finding cannot be disturbed in Revision. The learned
counsel had placed reliance on Manoj Kumar Jain Vs. Lalchand Ahuja, , B. Ataullah Vs. K. Nisar Ahmed, , J.R. Ramesh Kumar @ Rameshji Vs.
N. Prabhakar Rao, and S. Gopinath Pillai and others Vs. Karamsetti Venkateswarlu and another, . The learned counsel also had contended that
the landlord can seek eviction of a residential premises for doing business and had placed reliance on Amtual Hafeez Vs. D. Mohammed Ibrahim
(died) per L.Rs., and D. Krishna Rao and Another Vs. K.V. Nayak and Another, . The learned Counsel elaborately arguing about the acts of
waste had contended that the acts of tenants in proceeding with the constructions in spite of the suit and in violation of the building Rules and
Regulations clearly and definitely constitute acts of waste. The learned counsel also had strenuously contended that these constructions are in fact,
contrary to Clause 8 and Clause 13 of the lease deed. The learned counsel also had referred to the illegal nature of constructions and also the
S.T.C. filed in this regard. The learned counsel also had contended that the acts of waste should be judged in the point of view of the landlord and
it is not for the tenants to state something about the same. The learned counsel placed reliance on Jamnadas and Anr. v. Smt. Zohra Begum,
1990(1) ALT 497, Shanthi Tarachand Vs. C.S. Narasimha Rao and others, .
8. Heard both the counsel and also perused the material available on record. The first submission made by the learned counsel representing the
respondent-landlord is that though the ground of wilful default was upheld against him by both the Courts below, and as against such adverse
findings, though no cross-objections had been filed, he is entitled to agitate the same in the present Civil Revision Petition. In the decision referred
(4) supra, it was held that where the appellate Court had ordered eviction holding in favour of the landlord on the ground of wilful default and also
against him on the other ground of bona fide personal requirement, in Revision filed by the tenant, the landlord can challenge the decision against
him on the second ground invoking the provisions of Order 41 Rule 22 C.P.C. even though cross-objections had not been filed. In the decision
referred (5) supra, the same view was expressed and hence the respondent-landlord is entitled to question even the adverse findings recorded
against him in the present Civil Revision Petition filed by the opposite party.
9. In this case, the landlord and tenant relationship between the parties is not in dispute. The monthly rent specified under Ex. A-1, dated 1-7-
1940 is Rs. 2.13 annas and the rent is payable on the first day of every succeeding month and the original tenant Sri K. Suryanarayana died even in
he year 1974 and respondents 1 to 4 in the R.C.C. who had been impleaded for the legal heirs of the said Suryanarayana, had attorned the
tenancy. The non-payment of rents for a long period from 1-1-1983 can be definitely termed as wilful default within the meaning of the Act and
even the admissions that the non-following of the procedure also point out towards wilful default only, are the contentions raised by the learned
counsel representing the respondent-landlord. But however, except the vague statement of P.W.1 that the tenants have not been paying rents for
the last more than ten years, the landlord is not specific and even in Ex. A-4, except vague allegation, there is no specific date, month or year and
Ex. R-1 is the certified copy of the order in H.R.C. No. 71/60 filed by the landlord against the tenants, which was filed on the ground of wilful
default for a period of only two months and which was also dismissed and the fact that the tenants had deposited Rs. 777/- towards rent before
the Court also is not in dispute. Except the evidence of P.W.1, there is no other evidence and the lease under Ex. A-1 is for a period of 75 years
and Exs. A-1 to A-10 and also Ex. C-1 do not throw much light on the aspect of wilful default. It is also pertinent to note that in Ex. A-4, no
specific date relating to the default of payment had been clearly specified and in the facts and circumstances of the case, inasmuch as the burden
lies on the landlord to establish the wilful default and he had miserably failed in this regard, both the Courts had recorded concurrent findings
negativing the ground of wilful default and hence while exercising the Revisional jurisdiction u/s 22 of the Act, I am not inclined to disturb the
findings of both the Courts below on the ground of wilful default.
10. Coming to the next aspect, the learned counsel representing the respondent-landlord also had pointed out that since a plea had been taken
relating to the additional accommodation and a finding had been clearly recorded at paragraph-20 of the order of the appellate authority, this can
also be a ground for ordering eviction of the Revision Petitioners-tenants. The appellate authority at paragraph-20 observed as follows:--
On a careful perusal of the evidence of P.W. 1, coupled with the admissions made by the respondents during the course of cross-examination, I
am of the view that the tenants are having sufficient additional accommodation for their living and they failed to establish the schedule premises is
not required for the personal occupation of the landlord"".
This observation was made by he appellate authority while deciding the ground of bona fide personal occupation under Point No. 2 and as can be
seen from the orders of both the Courts below, this ground was not seriously argued and even the points for determination framed by the appellate
authority clearly go to show that this ground was not specifically argued and even otherwise even on the material available on record, this ground
cannot be considered as a separate ground for ordering eviction of the tenants.
11. The appellate authority had discussed the bona fide personal requirement as Point No. 2 at paragraphs 15 to 22 of the order. The main stand
taken by the Revision Petitioners-tenants is that the ground of bona fide personal requirement is raised only with a view to throw them out and
absolutely there is no requirement at all and further the landlord is having several residential and non-residential buildings, which had been let out
and the contention of the landlord that the schedule premises is required for his sons'' business is only to evict them from the petition schedule
property. The non-examination of the sons of the landlord also had been urged as a serious lapse on the part of the landlord in establishing his bona
fide personal requirement. It is not in dispute that K. Suryanarayana had taken the petition schedule premises under a registered lease deed under
Ex. A-1 for 75 years commencing from 1940 on a monthly rent of Rs. 2.13 annas. In fact, the appellate authority at paragraphs 17 and 18 had
discussed about the evidence of R.W.1 and R.W.2 and also had discussed the evidence of P.W.1 at paragraph 19. It is the evidence of P.W.1
that he owns two houses in Bheemunipatnam Municipality and they are not sufficient for the requirement of his sons and the same is required for
bona fide personal requirement of his sons and no doubt the tenants are using the said houses for residential purpose and P.W.1 also had stated
that there are five shops belonging to him which had been leased out. But he had not mentioned the nature of business to be transacted in the
leasehold property. However, P.W.1 had not given any details and had not examined any of his sons also to establish bona fide personal
requirement. No doubt, strong reliance was placed on the decisions (14), (15) and (18) referred to supra. It is no doubt true that the pleadings
relating to bona fide personal requirement may have to be construed liberally, provided on the facts and circumstances, the ground can be said to
have been established. R.W.1 had deposed in his evidence that the petition schedule property is in a residential locality and except this house there
is no other house of his own and all of his sons are doing business and his elder brother and the second brother passed away and he has been
looking after the affairs of the family and he had also stated that his father worked as Chairman of Bheemunipatnam Municipality and it was also
stated that they own a house adjacent to the petition schedule house and it is their joint family house and all their brothers are entitled to the same
and his father might have purchased a house bearing No. 12-21-54 and it is a single room house and all the brothers are entitled to the said
property after expiry of their father and no doubt he had spoken about the relinquishment deed executed by all his brothers in favour of 3rd
respondent in the R.C.C. R.W.2 also was examined in this regard. Section 10(3)(d) of the Act specifies that where the tenancy is for a specified
period agreed upon between the landlord and tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such
period. It was no doubt strenuously contended by the counsel for the Revision Petitioners that since the period specified by the lease deed is for a
period of 75 years, there is no question of invoking any of the grounds u/s 10(3) of the Act. On the over all facts and circumstances and on
appreciation of the evidence let in by the respective parties, on the strength of the vague pleading and also the vague evidence, which was let in on
behalf of the landlord relating to the aspect of bona fide personal requirement, it cannot be said that the ground of bona fide personal requirement is
proved by the landlord, so as to get the relief of eviction on the said ground.
12. Now corning to the ground of acts of waste, the appellate authority had discussed the acts of waste at paragraphs 23 to 30 of the order and
had arrived at a conclusion that the findings of the learned Rent Controller in respect of acts of waste are liable to be set aside. Section 10(2)(iii) of
the Act says that the tenant has to commit such acts of waste as are likely to impair materially the value of the utility of the building. It is not in
dispute that Revision Petitioners-tenants had made several constructions and alterations without the consent or permission of the respondent-
landlord and also contrary to the terms of the very lease deed. However, the main contention of the learned counsel for the Revision Petitioners is
that these constructions, additions and alternations will in no way impair the utility of the building or they will not diminish the value of the building
and in fact they are improvements made to the building and hence at any stretch of imagination, these constructions and alternations, will not fall
under acts of waste. It is not in dispute that the landlord filed O.S.No. 1/93 on the file of District Munsif Court, Bheemuniptanam, wherein an
application for temporary injunction was filed and the tenants had given an undertaking that they are not going to make any further constructions. A
Commissioner was appointed and he had filed the report, which was marked as Ex. C-1. P.W.1 had specifically denied when it was suggested
that he had kept quiet when the constructions were made in the year 1992 and that he had given consent for such additions. P.W.1 also had
denied that his brother and himself had given consent for all constructions made by the tenants. R.W.1 had stated that the landlord had filed a suit
for injunction and had admitted during cross-examination that in October 1992 they started construction after applying the plan for approval of the
Municipality and that he had proceeded with the constructions and had completed and R.W.1 also had admitted that he had not obtained any
written permission from the landlord for such constructions, but had obtained oral permission, and that he had not intimated the landlord about the
constructions and he had also admitted about the filing of O.S. No. 1/93 for permanent injunction, in which an undertaking was given to the effect
that there will be no further constructions. It was also admitted that when the Commissioner had visited the schedule mentioned property and had
inspected the same the construction was in progress by the time of inspection of the Commissioner and it was admitted that they had completed the
constructions in the month of February or March 1993 and there is another admission that he had applied for the approval of the plan, which was
refused. Thus, in the light of Clauses 8 and 13 in the lease deed, the tenants are not entitled to raise constructions and even otherwise, written
consent had to be obtained. Apart from this aspect, the filing of the suit O.S.No. 1/93 and also the undertaking given and despite all this,
proceeding with construction even at the time of visit of the Commissioner, as evidenced by Ex. C-1, though in fact even the plan was refused,
clearly go to show that the contention of the tenants that such additions or constructions should be taken as improvements made to the building and
not acts of waste, cannot be accepted at all. The concept of acts of waste in relation to a building, always may have to be judged in the point of the
landlord''s view. It is pertinent to note that whatever may be the alterations or changes, a tenant cannot act and behave as the owner of the
property and the tenant must be always conscious of the fact that he is only a tenant. In the present case, even the very proceeding with the
constructions appear to be contrary to the specific terms and conditions incorporated even in the lease deed. In the decision referred (3 supra), it
was held that in order to constitute voluntary waste by destruction of the premises or additional construction, the destruction or the construction
must be wilful or negligent and a substantial alteration in the character of the demised premises may be treated as a waste, provided it is impairing
its value or utility and the mere change or addition in the demised premises is not a waste, unless it is in fact injurious to the interests of the landlord
either by diminishing the value of the estate or by increasing burden on it. In the present case, it is not in dispute that the constructions made were
even though the plan was not approved, which is clearly in violation of the building Regulations. The conduct of the tenants in giving an undertaking
and despite the same even at the time of visit of the Commissioner proceeding with further constructions, clearly go to show that definitely such
acts will fall within the acts of waste and such illegal acts, at any stretch of imagination, cannot be said to be not acts falling within the meaning of
the expression ""acts of waste"". Reliance also was placed on the decisions (7); (19) and (20). In the decision referred (7 supra), at page 638, it was
observed:
As regards to acts of waste the learned counsel for the petitioners contended that as the wooden staircase was in dilapidated condition, ''pucca''
staircase was constructed by removing that wooden staircase and that ''pucca'' staircase would not impair the value of the petition schedule
building or its utility but it was only an improvement and therefore the petitioners did not commit any acts of waste on the petition schedule building.
Contending so, the learned counsel for the petitioners has placed reliance upon the decision of the Supreme Court in Rafat Ali v. Sugni Bai and
Ors. (AIRCJ Page No. 1) wherein it was held:
All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building
or its utility"".
In the case on hand the petitioners categorically admitted that the existing wooden staircase was removed and ''pucca'' staircase was constructed
effectively enjoy the first floor of the petition schedule building as the wooden steps had become completely dilapidated. It is true that the first floor
is also under occupation of the petitioners. If really the wooden staircase had become unuseful, nothing prevented the petitioners from giving a
notice to the first respondent to construct a ''pucca'' staircase or a new staircase. Further as the petition schedule building is within the Municipal
limits, any alteration to the petition schedule building can be done only after obtaining prior permission of the Municipality. In the instant case, the
petitioners neither obtained consent from the first respondent nor obtained permission from the Municipality for constructing ''pucca'' staircase.
With the result, the Municipality gave a notice for demolition of that ''pucca'' staircase. The learned counsel for the first respondent has produced
before me the photographs of the petition schedule building showing the existence of the building at present. From the photographs it is also seen
that at the time of removal of wooden staircase the roof of the first floor of the petition schedule building which was Madras tiled roof, was
completely damaged and that the parapet drop wall intended to protect the petition schedule building from rain water was completely demolished.
Hence it cannot be said that construction of a ''pucca'' staircase without prior permission under the bye-laws of the Municipality cannot be treated
as an improvement to the petition schedule building more so after the Municipality gave notice for removal of the staircase. Hence the action of the
petitioners in removing wooden staircase and constructing a ''pucca'' staircase as discussed above amount to acts of waste and the decision of the
Supreme Court in Rafat Ali v. Sugni Bai and Ors. (4 supra) relied upon by the learned counsel for the petitioners does not come to his rescue"".
13. In the light of the facts and circumstances discussed above in detail relating to the nature of acts of the Revision Petitioners-tenants in violation
of the terms and conditions of the lease deed in violation of the undertaking and also proceeding with the constructions and alterations without the
written consent, and also in the light of the essential aspect that they had proceeded with the constructions despite the disapproval of the plan, in
my considered opinion, these acts not only can be termed as acts of waste within the meaning of Section 10 of the Act, but also can be definitely
termed as totally unauthorized, illegal and even unruly.
14. In view of the detailed discussion, I am of the considered opinion that the clear findings recorded by the appellate authority on the ground of
acts of waste, cannot be disturbed at all, viewed from any angle. Hence, for the reasons recorded above, the Civil Revision Petition is devoid of
merits and accordingly the same is dismissed, with costs. However, the Revision Petitioners-tenants are granted three months time to vacate the
premises.