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2001 DIGILAW 735 (AP)

Kodangi Sethu Madhava Rao v. Chakka Prabhakar Rao

2001-07-18

B.S.A.SWAMY

body2001
B. S. A. SWAMY, J. ( 1 ) AGGRIEVED by the order of eviction, dated 21-8-1998, passed by the learned Rent controller (Junior Civil Judge), Palakol in r. C. C. No. 24 of 1984 as affirmed by the learned Senior Civil Judge, Narsapur by order, dated 29-8-2000, in C. M. A. No. 18 of 1998, this civil revision petition was filed. ( 2 ) THE facts are not in dispute. The first petitioner took the petition schedule building from the first respondent on a monthly rent of Rs. 300. 00 for a period of 5 years from 1-4-1976 to 31-3-1981 under a registered lease deed for running a canteen (hotel ). During the subsistence of the said lease, he took the upstairs portion of the petition schedule building on a monthly rent of Rs. 80. 00 under a registered lease deed, dated 24-8-1977. After expiry of the lease period, the first petitioner continued as tenant by enhancing the rent to rs. 500/- per month from 1-10-1982. While the case of the first respondent was that the first petitioner on 1-1-1984 executed fresh unregistered lease deed for a period of 5 years, the case of the first petitioner was that he did not execute the lease deed but it was only the second petitioner that executed the lease deed. It was also the case of the first respondent that the first petitioner stopped payment of rent to the first respondent from May 1984 and sublet the petition schedule building to the second petitioner and also committed acts of waste by constructing staircase by removing wooden staircase without obtaining prior consent from the first respondent and without approval of the Municipality. Hence the first respondent laid R. C. C. No. 24 of 1984 seeking eviction of the first petitioner herein on the following three grounds: (1) Wilful default in payment of rent, (2) Subletting the petition schedule building, and (3) Committing acts of waste. The said R. C. C. No. 24 of 1984 was preceded by exchange of legal notices wherein the first petitioner denied relationship of landlord and tenant between the first respondent and himself and pleaded that only the second petitioner, the maternal uncle of the first petitioner, was lessee. Along with the reply notice, the 2nd petitioner sent demand draft for rs. Along with the reply notice, the 2nd petitioner sent demand draft for rs. 2,000/- to the first respondent towards monthly rent for the petition schedule building for four months from June to september of 1984 and the same was returned by the respondent on the ground that the 2nd petitioner is not the lessee. ( 3 ) THE defence taken with regard to the wilful default in the counter was that the rent for the months of June and July of 1984 was sought to be adjusted for construction of pucca stair case and that for the months of August and September of 1984 the rent could not be paid as the first respondent was on a pilgrimage. With regard to the subletting, the case of the first petitioner was that the second petitioner was managing the hotel even from the days when the petition schedule building was under the lease of the father of the first petitioner i. e. , prior to 1976; that the eviction petition filed by the first respondent against the father of the first petitioner ended in compromise and, in the compromise decree, the first petitioner gave up the plea of subletting the petition schedule building to the second petitioner and hence as the second petitioner had been in possession from the days of the father of the first petitioner, it was too late to contend that the second petitioner was a sublessee in the petition schedule building. With regard to letting out a small portion in the veranda to the pro-forma second respondent for running a pan shop, he stated that the second respondent was only a licensee and the moment notice was issued, the second respondent vacated that premises. With regard to the acts of waste, the case of the petitioners was that in the place of dilapidated wooden staircase, the petitioners constructed pucca staircase and it was only an improvement but not act of waste committed on the petition schedule building. On all the above three issues, both the Courts below concurrently found against the petitioners. Hence this civil revision petition. On all the above three issues, both the Courts below concurrently found against the petitioners. Hence this civil revision petition. ( 4 ) SRI N. V. Suryanarayana Murthy, senior learned Counsel, appearing for sri Subrahmanyam Kurella, learned counsel for the petitioners, strenuously contends that mere default in payment of rent cannot entitle the landlord to recover the possession of the premises unless the landlord proves that committing default in payment of rent should be a wilful one as contemplated under the proviso to section 10 (2) of the Andhra Pradesh buildings (Lease, Rent and Eviction) control Act, 1960 (Act XV of 1960) (for short "the Act"); that in this case, whatever may be the conduct of the first petitioner in not paying the rent for four months, the moment he received the notice from the first respondent, the 2nd petitioner sent the amount to the first respondent by money order to prove his bona fides and therefore the default in payment of rent cannot be treated as wilful one. The sheet anchor of the argument of Sri Suryanarayana Murthy is based on the decision in M/s. Chordia automobiles v. S. Moosa wherein their lordships of the Supreme Court considered the effect of Section 10 (2) of the Tamil nadu Buildings (Lease and Rent Control) act (18 of 1960), the Explanation I of which reads:"for the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent. . . . . . . . . . "the effect of the above Explanation is that if the tenant commits default in payment of rent the landlord has to give two months notice to the tenant with regard to the same and that if the tenant fails to pay the rent within the period of two months from the date of receipt of the notice then only the default is construed as wilful default. In the a. P. Act, such a provision is not there. In the a. P. Act, such a provision is not there. On the other hand, a five-Judge Bench of this Court, in P. Narasimha Rao v. K. R. K. Acharyulu, having considered the provisions of the Act, overruled the Full bench decision of this Court in A. Abbayi v. R. Choultry and observed at paragraph 8 as follows:"under Sec. 10 (2) (i) the Controller shall make an order directing the tenant to put landlord in possession of the building if the Controller is satisfied that the tenant had not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. . . . . . . . . . . . . . There is nothing in this section which enables the tenant to contend that the right is lost merely because he pays or tenders the rent due by him subsequently. "paragraph 13 of the same decision reads as follows:"for the reasons stated above and particularly in view of the decisions of the Supreme Court in Mangilal v. Sugen Chand AIR 1965 SC 101 and gajanan v. S. H. Patel AIR 1975 SC 2156 , we are of the view that it cannot be contended that the eviction petition was not maintainable merely because the landlord received the rent prior to the eviction petition and on this aspect the decisions in A. Abbayi v. R. Choulty air 1974 A. P. 139 and Paru Bai v. Sitharamji Bajaj ( 1974 (1) APLJ 148 ) were not correctly decided. "as the decision of the five-Judge Bench of this Court in P. Narasimha Rao v. K. R. K. Acharyulu (supra) is directly on the point in this case, I am bound by that decision than drawing inference from the decision of their Lordships of the Supreme court in M/s. Chordia Automobiles v. S. Moosa (supra) whereunder the language of section 10 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act was considered. In fact, in this Act also, it is seen that if the tenant fails to pay the rent within 15 days after expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, the default in payment of rent has to be treated as wilful. ( 5 ) NEXTLY Sri Suryanarayana Murthy has drawn my attention to the observations made by their Lordships on "wilful default" in paragraph 8 of the above decision (supra) as follows:"wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the explanation to the proviso of Sec. lo (2 ). The dispute of rent admittedly was genuine. Further, we find conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter. "in fact, under the proviso to Section 10 (2) of the Tamil Nadu Buildings (Lease and Rent Control) act, if the Controller is satisfied that the tenant s default to pay or tender rent was not wilful, he must, notwithstanding anything contained in section 11 of that Act, give the tenant reasonable time not exceeding 15 days time to pay or tender to pay the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected. In this case, firstly there is no such provision. Secondly the specific case of the first petitioner is that he is not the tenant and the second petitioner is the tenant. The 1st petitioner executed Exs. A-1 and A-2, two registered sale (sic. lease) deeds, and was shown as tenant. Even after issuance of the legal notice, the second petitioner sought to pay the rent but not by him. Secondly the specific case of the first petitioner is that he is not the tenant and the second petitioner is the tenant. The 1st petitioner executed Exs. A-1 and A-2, two registered sale (sic. lease) deeds, and was shown as tenant. Even after issuance of the legal notice, the second petitioner sought to pay the rent but not by him. The first respondent refused to receive the rent and sent a legal notice, dated 8-11-1984, stating that the second petitioner was not his tenant and it was only the first petitioner that was his tenant and hence accepting the rent from the second petitioner did not arise. While sending reply, dated 12-10-1984, to that notice it was categorically stated inter alia;"there is no sub-lease at all and it is 2nd of my clients that is the lessee from 1-4-1983 in respect of your building. . . . . . . . . . . . . . . . . . . Subsequently, the father of 1st of my clients has become seriously ill and the first of my clients was attending on him. A draft for rs. 2,000/- is sent herewith, without prejudice to the rights and contentions of the 2nd of my clients towards the rental for 4 months. "from this it is seen that the specific case of the petitioner is that after 1-4-1983 the first petitioner was not the lessee but it was the second petitioner that was in possession of the petition schedule building. When ex. A-3 unregistered lease deed was put to the first petitioner, he admitted that he executed that lease deed in his individual capacity but not in the capacity of partner. Likewise, in the counter filed by him his specific case was that he being not the tenant there was no obligation to pay the rent to the first respondent. From this it is evident that the real tenant did not tender the rent but the second petitioner who is, according to the first respondent, the subtenant. The statement of the second petitioner will be considered while dealing with the issue of subtenancy. From this it is evident that the real tenant did not tender the rent but the second petitioner who is, according to the first respondent, the subtenant. The statement of the second petitioner will be considered while dealing with the issue of subtenancy. Further while admitting that he (first petitioner) had not paid rent for the months of June and July of 1984, he (first petitioner) came up with the plea that he constructed pucca staircase and claimed set-off towards the expenses incurred by him in constructing the pucca staircase from the amount of rent for those two months. The first respondent received the amount under protest as requested in the legal notice given on behalf of the second petitioner. Admittedly the pucca staircase was constructed without giving any notice to the first respondent seeking repairs to the petition schedule building or without his prior consent. Hence it cannot be said that non-payment of rent for the months of June to September of 1984 is not wilful. Accordingly the first issue is answered in favour of the first respondent- landlord and against the petitioners- tenants. ( 6 ) COMING to the sub-tenancy, the case of the first petitioner was that the second petitioner was managing the hotel from the time of his father and in fact the first respondent filed eviction petition, a. B. O. P. No. 43 of 1971, on the file of the learned Rent Controller, Narasapur against the father of the first petitioner seeking eviction on the ground that the petition schedule building was sublet but not on the ground of wilful default and that eviction petition ended in compromise. As per the terms of the compromise decree, dated 22-12-1971, the first petitioner should continue to be the tenant of the petition schedule building till 31-7-1975. Clause 4 of the said compromise decree reads:"that the petitioner do give up the reliefs prayed for against respondents 2 and 3". That means that the first respondent has given up the plea of sub-tenancy. On the basis of the above clause the learned counsel for the petitioners strenuously contends that the first respondent agreed not to press the plea of sub-tenancy and the tenancy being a continuous one, at this belated stage the first respondent cannot contend that the petition schedule building was sublet to the second petitioner. On the basis of the above clause the learned counsel for the petitioners strenuously contends that the first respondent agreed not to press the plea of sub-tenancy and the tenancy being a continuous one, at this belated stage the first respondent cannot contend that the petition schedule building was sublet to the second petitioner. I am unable to accept the contention of the learned Counsel for the petitioners for two reasons. Firstly, the first clause of the compromise decree categorically says that the first respondent alone do continue to be the tenant of the petition schedule building which means that no other person shall be inducted as a tenant or a sub-tenant into the premises. The effect of giving up the relief against tenants, according to me, is that the second petitioner has to vacate the premises immediately and the father of the 1st petitioner has to vacate the premises after expiry of the lease and that if any other interpretation is placed clause 1 of the compromise memo becomes redundant. ( 7 ) BE that as it may, I need not go to that extent for the reason that the father of the first petitioner handed over the vacant possession of the premises after expiry of the lease on 31-3-1975. After some time, the first petitioner entered into fresh lease under a registered lease deed and as such he cannot contend that the second petitioner has been in possession and management of the canteen from the days of his father to the knowledge of the first respondent and as such the plea of the first petitioner with regard to subletting of the petition schedule building to the second petitioner has no legs to stand. If the intention of the parties was to allow the 2nd petitioner to manage the petition schedule building, it is seen that there has been absolutely cordial relations from 1976 to 1984 and nothing prevented the petitioners from taking the petition schedule building on lease jointly as they are closely related to each other or in the name of the 2nd petitioner as he was managing the Hotel from the commencement of the tenancy. But all through the first petitioner was entering into lease agreements. But all through the first petitioner was entering into lease agreements. Surprisingly the first petitioner raised the plea when the first respondent gave a notice of eviction to him stating that he was not the tenant but the second petitioner was the tenant and there was no obligation on him to pay the rent. ( 8 ) NEXT during the exchange of notices, the specific case of the petitioners was that from 1-1-1984 the second petitioner was the lessee but not the first petitioner. From this it is proved beyond doubt that the petition schedule building was sublet to the second petitioner. At any rate, the first petitioner parted with the possession of the petition schedule building in favour of the second petitioner without consent, knowledge or permission of the first respondent. Hence, the necessary conclusion that has to be drawn is that the first petitioner sublet the petition schedule building to the second petitioner. ( 9 ) FURTHER letting out the corridor of the petition schedule building for running a pan shop in favour of the second respondent was also admitted but the first petitioner tried to defend his action by stating that the second petitioner (sic. respondent) was only a licensee but not a tenant and the moment he received notice, he got the second respondent evicted from that premises. The reasoning given for sublease in favour of the second petitioner is equally applicable to the second-respondent also. ( 10 ) 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 others 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. 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 a pucca staircase was constructed to 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 the 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 Baiand others (supra) relied upon by the learned Counsel for the petitioners does not come to his rescue. ( 11 ) IN view of the foregoing reasons, I hold that the orders of the Courts below are perfectly in order and do not call for any interference from this Court. ( 12 ) THE civil revision petition is accordingly dismissed. There shall be no order as to costs. ( 11 ) IN view of the foregoing reasons, I hold that the orders of the Courts below are perfectly in order and do not call for any interference from this Court. ( 12 ) THE civil revision petition is accordingly dismissed. There shall be no order as to costs. ( 13 ) THE petitioners are given three months time to vacate the petition schedule Building.