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2001 DIGILAW 704 (MP)

Mariyam Begum v. Basheerunnisa Begum

2001-09-26

S.N.PHUKAN, S.S.M.QUADRI

body2001
JUDGMENT The parties in these two appeals are common. The appellant is the tenant in these appeals and the first respondent is the landlady. Civil Appeal No. 1715 of 1997 is from the order of the High Court of Andhra Pradesh in RP No. 873 of 1993 passed on 7.8.1996. Civil Appeal No. 1716 of 1997 is from the judgment of the High Court of Andhra Pradesh in CRP No. 17 of 1993 passed on 10.12.1996. . To appreciate the questions that arise in these cases, it will be appropriate to refer to the facts giving rise to these appeals briefly. The respondent filed RC No. 244 of 1983 in the Court of and Additional Rent Controller, Hyderabad, for eviction of the appellant from Premises H. Nos. 11-4-773 and 11-4-773/1 Bazar Street, Hyderabad (for short 'the building') on various grounds including default in payment of rent for the period -- 1.5.1983 to 31.10.1983 under section 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act'). While the said RC was pending, she filed RC No. 20 of 1985 before the Rent Controller seeking eviction of the respondent under section 10(2) (ii) (a) of the Act on the ground that she has sub-let a portion of the suit premises to the second respondent therein who is carrying on the business of supplying building material in the name and style of M/s. Shyama Traders. She also filed RC No. 115 of 1984 in the Court of Principal Rent Controller on the ground that the respondent committed willful default in payment of rent for the period -- 1.11.1983 to 31.3.1984, under section 10(2 )(i) of the Act. While these cases were pending, the first case RC No. 244 of 1983 was dismissed on 4.4.1988. The order of dismissal in that RC has become final. . Insofar as RC No. 115 of 1984 (filed on the ground of willful default) is concerned, the learned Rent Controller found that the respondent committed willful default in payment of rent and ordered eviction. That order was upheld in appeal as well as in revision by the High Court. It is from this order Civil Appeal No. 1716 of 1997 arises. On the ground of sub-letting the learned Rent Controller ordered eviction taking the view that sub-letting was proved. That order was upheld in appeal as well as in revision by the High Court. It is from this order Civil Appeal No. 1716 of 1997 arises. On the ground of sub-letting the learned Rent Controller ordered eviction taking the view that sub-letting was proved. However, on appeal the learned Chief Judge, City Small Cause Court, Hyderabad, set aside" the judgment of the Rent Controller and allowed the appeal on 28.10.1992. The matter was carried to the High Court in CRP No. 873 of 1993 and by order dated 7.8.1996 the High Court set aside the order' of the Appellate Authority and restored the order of the learned Rent · Controller and thus allowed the revision. From that order Civil Appeal No. 1715 of 1997 arises. So far as Civil Appeal No. 1716 of 1997 is concerned, Ms K. Amareswari, the learned Senior Counsel appearing for the appellant ~ contends that non-payment of rent during the said period -- 1.11.1983 to 31.3.1984 -- was due to the reason that IA filed in RC No. 244 of 1983 under section 11 of the Act was pending before the learned Rent Controller, the appellant therefore thought that she need not deposit the rent till the matter was decided by the Court, therefore the default in payment of rent cannot be treated as willful default. The learned counsel submits that immediately after passing of the order on 28.4.1984, the appellant paid the amount due under Exts. R-1 and R-2 on 8.5.1984 and 17.7.1984. Thus the default in payment of rent cannot be treated as willful default and therefore the order of the High Court under challenge confirming the order of the appellate Court is fit to be set aside. We are afraid, we cannot accede to the contention of the learned counsel, firstly because the learned Rent Controller found the ground of willful default against the appellant and the learned Appellate Judge confirmed the same. The High Court thought it fit not to interfere as the finding was a concurrent finding. And secondly on merit. What amounts to willful default has been restated by this Court in J. Jermons v. Aliammal [( 1999) 7 SCC 382] as under: (SCC p. 393, para 17) ".... 'willful default' implies intentional or conscious violation of obligation to pay the rent due: it may also be on account of supine indifference or callous or recalcitrant conduct. What amounts to willful default has been restated by this Court in J. Jermons v. Aliammal [( 1999) 7 SCC 382] as under: (SCC p. 393, para 17) ".... 'willful default' implies intentional or conscious violation of obligation to pay the rent due: it may also be on account of supine indifference or callous or recalcitrant conduct. But if the default has occasioned on account of ignorance, accident or compulsion or circumstances beyond the control of the tenant, it cannot be termed as 'willful default'. This has to be determined as a question of fact on the facts and in the circumstances of each case." It is this dictum which is also relied upon by the learned counsel to contend that the default in payment of rent is not a willful default.. The learned counsel submits that she is an illiterate lady and on account of ignorance she could not pay the rent in time; she believed that as IA No. 11 was pending in the Court, she could pay the rent only when the IA is decided. We are unable to accept this contention. When the IA was pending in the Court, she was represented by an advocate in all the three cases noted above. She had the advantage of seeking advice from her advocate appearing on her behalf, if she had any doubt. This shows that there has been indifference, rather supine indifference, to the obligation of the payment of rent to the landlady. In this view of the matter we do not find any merit in the appeal. It is accordingly dismissed. In the view we have taken in this appeal we do not consider it necessary to go into the other question, of sub-letting, in regard to the very same premises which is the subject-matter of Civil Appeal No. 1715 of 1997. The appeal is accordingly disposed or. In the circumstances of the case the parties are directed to pay their own costs. The learned counsel submits that the tenant is carrying on a restaurant in the premises and it is difficult to secure accommodation for shifting the business, so a year may be granted to vacate the premises. The appeal is accordingly disposed or. In the circumstances of the case the parties are directed to pay their own costs. The learned counsel submits that the tenant is carrying on a restaurant in the premises and it is difficult to secure accommodation for shifting the business, so a year may be granted to vacate the premises. In these circumstances, we grant time to the appellant till 30.4.2002 to vacate the premises and hand over peaceful possession of the same to the respondent subject to the appellant's filing the usual undertaking within three weeks from today. However, we make it clear that this order does not preclude the parties from settling the matter if they so desire within the aforesaid period.