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Appeal No.316 of 1978. decide on 28th January. 1987.

---S.15 [original provision before substitution]--Second appeal-- Findings of fact concurrently arrived at by Rent Controller and Appellate Court below being justified and based on evidence on record, held, could not be interfered with in second rent appeal before High Court especially 'when appellants failed to show any defect in judgments of Courts below.

---S.15 [original provision before substitution]--Civil procedure Code (V of 1908), O.XXII, R.4--Second rent appeal--Request for adjournment--Appellants/tenants being partners as well as brothers in spite of committing default in payment of rent since long, continued to occupy premises as tenants--Ejectment of Tenants having been upheld concurrently by two Courts below, High 1'ourt refused to adjourn matter in second appeal considering same justifiable--High Court also refused to grant application under O.XXII, R.4 C.P.C. to implead legal representatives of one of tenants who had expired and upholding the judgments of two Courts below dismissed the appeal.

Fazle Ghani for Appellants.

Khalil Ahmad Kaleem for Respondent.

Date of hearing: 25th January, 1987.

This IInd Appeal is directed against the judgment passed by the Rent Controller directing the ejectment of the appellants on 15-7-1975 and the judgment, dated 31-5-1978 by IVth Additional District Judge, Hyderabad dismissing the Ist Appeal of the appellants.

2. It is an admitted position that there was a tenancy agreement, dated 1-7-1970 between the appellants Nos.l and 2 one the side as partners of Seemab Dry Cleaners and the respondent on the other side, a landlady. Before this date, the appellant No.1 was alone the tenant of these premises in his capacity as a statutory tenant as the premises had been transferred to the respondent by P.T.O. and P. T. D. in 1960/ 1963. The rent had been agreed between the parties on 1-7-1970 as Rs.450 per month, but for the initial 11 months from 1-7-1970 it was to be Rs.350 per month.

3. On 10-11-1971, the respondent filed an application for ejectment on the ground that rent had not been paid for the period 1-6-1971 to 30th November, 1971 a period of 6 months @ Rs.450 per month, and further the appellants had failed to deposit the amount of Rs.2,000 which they had agreed to deposit by 31st July, 1970.

4. In the joint written statement /objections filed by the appellants it was stated that the rent of Rs.450 was very excessive and, therefore, it had not been paid for June to November, 1971 as it was against public policy. It was also stated that the deposit of Rs.2,000 had been relinquished by the attorney of the respondent.

5. The Rent Controller framed the issues for non-payment of rent and the non-payment of deposit of Rs.2,000 as well as the issue of lack of notice under section 30 of the Displaced Persons Act, 1958.

6. The Attorney of the respondent, Wajeehuddin, examined himself and stated that the rent had not been paid as stated in the application for ejectment. He also produced the registered A.D. notice and its A.D. receipt which he had sent under section 30 to appellant No.1 in 1962.

In cross-examination he admitted that a cheque of Rs:350 had been given to him, but he did not accept the same as it was not the payment of entire arrears. He' also admitted that after the filing of the ejectment application Rs.1,500 was paid to him. But he stated that nothing else had been paid to him.

7. The appellant No.1 did not examine himself. The appellant No.2 stated that rent was only Rs.8 per month, but he admitted his signature on the agreement. The appellant No.2 stated that he had sent a draft of Rs.1,050 to the respondent, but he did not produce the same nor did he produce any acknowledgment from the respondent of the receipt of a draft nor did he produce any receipt from any Bank to the effect that they had issued a draft of Rs.1,050 in favour of the respondent or her attorney at any time. I may also note that the assertion of appellant No.2 that a draft of Rs.1,050 had been given to respondent was against the admission made by the two appellants in their objection, in para. 7 where it had been clearly stated that the opponents had first agreed to pay Rs.350 as rent in the first instance, but, later on, they had refused to pay the high rate at Rs.450 as it was against the public policy.

8. The appellants' counsel Mr. Fazle Ghani Khan had submitted that the demand at Rs.450 per month was not justified and, therefore, there was no default in rent. This submission is not correct because if the appellants considered that rent of Rs.350 per month was only justified as it was agreed between them in the first instance, therefore, they should have at least paid the rent at Rs.350 per month, but even on that rate the rent had not been paid and, therefore, it is obvious to me that there was a clear default in the payment of rent. The findings of the Rent Controller and the Appellate Court were justified and the same being concurrent on facts, the same could not be interfered with in this appeal. I have also scrutinised the findings in respect of the non-deposit of Rs.2,000 by the appellants, I find that the same is also justified in view of the fact that it was agreed in the Rent Agreement that it would be deposited, but it was not so deposited. The respondent had clearly mentioned in para. 8 of the ejectment application that deposit of Rs.2,000 had not been made by the appellants although agreed and the reply of the appellants in their objections in para. 8 was that the deposit had been relinquished by the Attorney of the respondent, therefore, it is clear that the appellants had not deposited Rs.2,000. I may however, note that in the deposition of the respondent it has been written that the opponents did deposit the amount of Rs.2,000 but this appears to be a mistake and word 'not' is missing from the deposition. I find that in the very next sentence, the cross-examination directed against the respondent was that he had never required the appellants to deposit the same, but his reply was that he had never asked them not to deposit the same. Moreover, I do not find anywhere in the examina tion-in-chief of the appellant No.2 that he ever deposited Rs.2,000 with the respondent. Even in the cross-examination of the appellant No.2 it has been stated by him that he could not say whether Rs.2,000 were deposited as security with the respondent. Therefore, the concurrent findings of the two lower Courts on this aspect of the case were also correct.'

The appellants' counsel had not been able to show any defect in the judgments of the two lower Courts and, therefore, this appeal has to be dismissed. I may note that Mr. Fazle Ghani Khan, Advocate had asked me to defer the hearing of the appeal as appellant No.2 had died and he wanted to bring the Legal Representatives of the respondent No.2 on record, but I did not grant that request in view of the provision of Order XXII, rule 4, C. P. C. The appellants had committed default in 1971 and in spite of this fact they had continued as tenants since 1971 till today and, therefore, there was no justification to adjourn the matter further. I may mention that appellants were partners as well as brothers.

9. This IInd Appeal is, therefore, dismissed. The appellants are directed to hand over the possession of the shop premises No.F/1038-A, Garikhata, Hyderabad to the respondent, but in view of the difficulty in securting alternate shop, I would allow 6 months' time to the appellants provided that they shall continue to deposit the rent at Rs.450 per month for the same. Writ of possession without notice will be issued against the appellants after 6 months from today in case the rent is deposited regularly every month and in case of default in payment of rent, writ can be issued earlier.

H.B.T./A-31/K. Appeal dismissed.

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