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2001 DIGILAW 1477 (AP)

J. M. Benedict v. Mithileswari Jaiswal

2001-11-19

L.NARASIMHA REDDY

body2001
L. NARASIMHA REDDY, J. ( 1 ) THIS revision is filed under Section 22 of the A. P. Buildings (Lease, Rent and eviction) Control Act, 1960. (hereinafter referred to as act ) by the tenant. ( 2 ) THE respondent is the owner of there sidential premises bearing No. 5-9-496 and 497 situated at Gunfoundary, hyderabad. The petitioner is the tenant in respect of the said premises, on a monthly rent of Rs. 130/- including water and electricity charges. The respondent filed r. C. NO. 745 of 1992 in the Court of Principal rent Controller, Hyderabad seeking eviction of the petitioner on the grounds of wilful default of payment of rent from 1-11-1990 to 31-10-1992 and that she requires the premises for her personal use and occupation. In the petition, the respondent pleaded that the petitioner paid rents up to October, 1990 and thereafter stopped paying the rents and that he is liable to pay a sum of Rs. 3,120/- towards accumulated rents up to October, 1992. The r. C. was filed on 10-11-1992. It was also stated that on account of the uncongenial atmosphere in her present place of residence and frequent quarrels between her husband and other members of the family, she needs the schedule premises for her personal occupation. ( 3 ) THE respondent (sic. petitioner) filed a counter resisting the petition. It was pleaded that the rents were being offered from time to time and when there was refusal on the part of the respondent to accept the rents, the petitioner had taken steps, such as by sending the rent by money order and also initiating proceedings under Section 8 of the act. He has also denied the plea of the respondent as regards personal occupation, on behalf of the respondent she examined herself, as P. W. 1 and she did not adduce any documentary evidence. The petitioner got himself examined as R. W. 1 and marked exs. R-1 to R-18. ( 4 ) ON appreciation of the oral and documentary evidence, the Rent Controller rejected the plea of the respondent that she needs premises for her personal occupation. So far as the plea of wilful default is concerned, the Rent Controller held that the petitioner herein committed wilful default in payment of rents and accordingly directed eviction of the petitioner through order-dated 13-4-1994. So far as the plea of wilful default is concerned, the Rent Controller held that the petitioner herein committed wilful default in payment of rents and accordingly directed eviction of the petitioner through order-dated 13-4-1994. Aggrieved thereby the respondent preferred R. A. No. 379 of 1995 in the Court of Additional Chief Judge, city Small Causes Court, Hyderabad. The appellate Authority also upheld the findings of the Rent Controller through its order dated 15-11-1999. The petitioner challenges the concurrent finding of the rent Controller and Rent Control Appellate authority in this revision. ( 5 ) SRI T. V. Rajeevan, learned Counsel for the petitioner submits that even before the respondent filed R. C. under Section 10 of the Act on 10-11-1992, the petitioner had taken necessary steps in accordance with the Act and filed R. C. No. 785 of 1991 before the Rent Controller under Section 8 of the act. In pursuance of the orders passed therein, the petitioner deposited rents for eleven months on 12-12-1991 and thereafter. the rents were being paid intermittently. According to him, the rent for the months from January 1991 to November 1991 were deposited on 12-12-1991. So far as the rents for the months of November and December 1990 are concerned, he states that the same were paid to the brother of the respondent. Relying on certain judgments of the supreme Court as well as this Court he states that inasmuch as the arrears of rents stood paid by the time the petition was filed under Section 10, and the non-payment, even if there existed, if any, should not be treated as wilful default and accordingly, he submits that the findings of the Rent controller as well as the Appellate authority on the question of wilful default cannot be sustained. ( 6 ) SRI P. Sridhar Reddy the learned counsel for the respondent, on the other hand submits that the deposit of rents oft 12-12-1991 cannot be said to be in accordance with the provisions of the Act and there was no plea in the counter filed in the R. C. with regard to the payment of the rents for the months of November and december 1990 to the brother of the respondent and the same was for the purpose of filling the gap. He further submits that petitioner made the deposit on 12-12-1991 and there was a default on the part of the petitioner subsequent thereto, till the filling of the R. C on 10-11-1992. He submits that both the Courts have discussed the matter at length and with reference to the concerned documents and the findings do not call for any interference. ( 7 ) THE only question that falls for consideration in this petition is whether there was any wilful default on the part of the petitioner herein. It was the specific plea of the respondent in her petition under section 10 that the petitioner has stopped payment of rents from October 1990 onwards and an amount of Rs. 3,120/- accumulated towards arrears of rent. This contention was dealt with by the petitioner in paragraph 5 of the counter. In this paragraph the petitioner had only stated that when there was a refusal on the part of the respondent in receiving the rents, he had issued letter dated 24-9-1991 enclosing the cheque dated 24-9-1991 for an amount of rs. 1,040/- drawn on State Bank of India. According to the learned counsel for the petitioner, the amount of Rs. 1,040/- represents the rent from January 1991 to august 1991. Nothing was pleaded as to the default for the months of November and december. Obviously, because there was no plea in the counter, an attempt was made in the evidence by stating that the rent was paid to the brother of the respondent. The courts below have categorically found that the petitioner has not stated as to which of the five brothers of the respondent, the amount was paid. Nothing was elicited by the petitioner from the person who is said to have received the rent. Therefore, the conclusion that there was default on the part of the petitioner in payment of rents for the months of November and December is irresistible. ( 8 ) IT was the contention of the petitioner that the cheque together with the covering letter dated 24-9-1991 marked as Ex. R-5 was received by some of the family members of the respondent. Obviously, because the cheque was not encashed or for some such similar reason, the petitioner came forward with an application in the form of R. C. No. 785 of 1991 under Section 8 of the Act for deposit of the rents from january to November 1991. R-5 was received by some of the family members of the respondent. Obviously, because the cheque was not encashed or for some such similar reason, the petitioner came forward with an application in the form of R. C. No. 785 of 1991 under Section 8 of the Act for deposit of the rents from january to November 1991. It is a different question whether such payment would absolve the petitioner from the consequences under Section 10. It will be dealt with a bit later. It needs to be seen as to how the petitioner made the payment of the rent from 12-12-1991 that is the date of filing R. C. NO. 785 of 1991 under Section 8 of the Act, to 10-11-1992, that is date of filing of r-C. No. 745 of 1992 by the respondent. The ledger of the Court in R. C. No. 785 of 1991, which is marked as R-15 indicates that on 12-12-1991 an amount of Rs. 130/- (sic.) representing the rent of January to november 1991 was deposited. Rent for december 91, was deposited on 23-1-1992. So far as the rent for the months of January and March are concerned, the challans for the same have been deposited with the court on 29-11-1994. The challans of rents for the months of February 1992, April 1992 to 4-11-1992 have been deposited with the court on 13-10-1993. It has to be seen whether with this manner and method of payment, the petitioner can be said to have made the payment of rents within the time and that there is no willful default. ( 9 ) BEFORE proceeding further, it has to be seen whether initiation of proceedings under Section 8 of the Act would absolve a tenant from the liability under Section 10 of the Act. In N. K. Marayya v. P. V. G. Raju anjaneyulu, J. summed up the legal position as under: "it is not therefore, possible to accept the plea that the petitioner was absolved from depositing the rent on the date when the rent became due every month. Rule 5 of the Andhra pradesh Building (lease, Rent and eviction) Control Rules, 1961 prescribes the manner in which the payment has to be made and does not confer any power to direct deposit of the rent at periodical intervals disregarding the data on which the rent actually becomes due. Rule 5 of the Andhra pradesh Building (lease, Rent and eviction) Control Rules, 1961 prescribes the manner in which the payment has to be made and does not confer any power to direct deposit of the rent at periodical intervals disregarding the data on which the rent actually becomes due. The obligation to pay the rent by a tenant to a landlord is referable to the agreement in writing, if any, and, in the absence of any such agreement, the rent has to be paid by the last day of the month next following that for which the rent is payable. This is dear from Section 10 (2) (i) of the Act. It is not possible to accept the suggestion that power is conferred on the Court to direct that rent could be deposited once in a while periodically. All the section 8 (5) provides is that the rent has to be deposited before the appropriate authority in such manner as may be prescribed by the rules and rule 5 prescribes the manner in which the amount has to be paid and that has reference only to the place where the amount has to be. paid and nothing more than that. The contention mat a tenant is absolved from his obligation to pay the rent to the landlord on the due dates once he takes recourse to section 8 (5) is totally unsupportable. with reference to the provisions contained in Section 8 (5 ). Even if permission is obtained (which fact is not verifiable) from the Court whenever rent is deposited periodically after taking considerable time, it does not have to logical consequence of the delay in the deposit of rent being condoned and the default excused. " ( 10 ) THIS proposition of law was followed in Kamala Bai v. E. Rajeswari. It is evident that mere initiation of proceedings under section 8 (5) would not absolve a tenant from the consequences that flow on account of the default in payment of the rent. The obligation of the tenant to explain the failure or refusal in paying the rent, may be, for the period for which he deposited the rents under Section 8 (5) continues despite honour of the Court permitting to deposit the rents. The obligation of the tenant to explain the failure or refusal in paying the rent, may be, for the period for which he deposited the rents under Section 8 (5) continues despite honour of the Court permitting to deposit the rents. In the present case, it has already been noticed that the petitioner did not make any payment of the rent for the months of november and December 1990. The rents for the months of January to August 1991 were offered to be paid to R-5. It was only in december 1991 the deposit was made. There was no explanation whatever for such a delay. Even if the various steps that are taken by the petitioner in this regard ought to be considered, it was only in September 1991 that he thought of sending the rent of about nine months through a cheque. Such a supine indifference cannot result except in wilful default. ( 11 ) THE payment into the Court under Section 8 of the Act can be said to have been made only when the challans are submitted into the Court, because it is only when challans are submitted that the Court takes them into account and permits the tenant to issue notice to the landlord to enable him to withdraw the amount. For the months from january 1991 till the date of filing of the r. C. , the challans are submitted only in october 1993 and thereafter. There cannot be a better example of wilful default than this. The petitioner appears to have reeled under the impression that the filing of R. C. under Section 8 of the Act had absolved him of the liability to pay the rents, and the deposit of the rents into the Court from time to time. ( 12 ) THE learned counsel for the petitioner submits that the amounts in respect of these rents were paid in time but on account of misplacing of challans, the same could not be submitted within time and that the same should not result for the tenant having committed wilful default. In this connection, it is to be noticed that payment of rents into the Court are governed by Rule 5 of the A. P. Buildings (Lease, Rent and Eviction) control Rules, 1961 (hereinafter referred to. uz Rules ). In this connection, it is to be noticed that payment of rents into the Court are governed by Rule 5 of the A. P. Buildings (Lease, Rent and Eviction) control Rules, 1961 (hereinafter referred to. uz Rules ). A detailed procedure is prescribed stipulating the manner in which the challans are to be submitted and the further steps to be taken thereafter notifying the landlord the factum of depositing of rents so as to enable him to withdraw the same. The procedure prescribed under rule 5 of the Rules was held to be mandatory by this Court in Hari Prasad badruka v. T. Laxmi. It has also been held that any noncompliance with the procedure stipulated therein would entail wilful default on the part of the tenant. The discussion has been summed up at paragraph 14, which is as under: "when a tenant takes recourse to section 8 of the Act for deposit of rents into the Court, he has to follow the procedure prescribed therein. If he fails to deposit challans into Court and give notice of deposit or fails to deposit process fee to enable the Court to cause service of notice of deposit on landlord for a considerably long time, it cannot but be held that he becomes a wilful defaulter, thereby creating a right in the landlord seeking his eviction from the demised premises on the ground of wilful default" the same has been followed with an approval in Smt. Arnavaz Rustom Printer v. N. D. Thadani. It is to be noticed in this case, that the non-compliance with the procedure stipulated under Rule 5 was not confined only to non-payment of the process for enabling the Court to issue notice to the landlord. The challans themselves were submitted after a period of more than one and half years from the dates on which the rent became due. Therefore, there is absolutely no compliance with the procedure stipulated under the Rules in the matter of payment of rents and as a rlecessary corollary, consequences have to follow. ____________________________ ( 13 ) THE learned counsel for the petitioner submits that once the tenant deposited the arrears of rent by the time eviction petition is filed, he will not be liable to be evicted on the ground of wilful default. ____________________________ ( 13 ) THE learned counsel for the petitioner submits that once the tenant deposited the arrears of rent by the time eviction petition is filed, he will not be liable to be evicted on the ground of wilful default. He placed reliance upon the judgments of the Supreme court in K. A. Ramesh and others v. Susheela bai (Smt.) and others as well as a full bench judgment of this Court in Vinukonda Venkata ramana v. M. Venkateswara Rao . Inasmuch as it has been found as a fact that the petitioner committed default in payment of rents even before he filed a petition under section 8 of the Act, and that rents for several months remained unpaid by the petitioner, as on the date of filing of the petition, the ratio in the said judgments cannot be applied in this case. ( 14 ) FOR the foregoing reasons, I do not find any reason to interfere with the concurrent finding of both the Courts below. The petitioner committed wilful default in payment of rents and thereby he became liable to be evicted. ( 15 ) ACCORDINGLY, the Civil Revision Petition is dismissed. No costs. Three months time is granted for the petitioner to vacate the premises.