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2003 DIGILAW 1022 (AP)

Syed Ashraf Ali v. A. Vijayalakshmi

2003-08-12

T.CH.SURYA RAO

body2003
( 1 ) THIS Civil Revision Petition is directed against the Judgment dated 05-06-2000 passed by the Additional Chief Judge, city Small Causes Court Hyderabad, In r. A. No. 6 of 1996. ( 2 ) THE unsuccessful tenant in both the forums is the revision petitioner and the respondent herein is the landlady who filed the eviction petition in R. C. No. 151 of 1990 on the file of the Additional Rent Controller secunderabad, seeking eviction of the tenant on the premises of wilful default, the tenant securing alternative accommodation of his own, and the bonafide personal requirement. On enquiry, the learned Rent Controller directed the eviction of the tenant on the ground of wilful default while negativing the other two pleas taken by the landlady. Having been aggrieved by the said order of eviction, the tenant carried the matter in appeal. Under the impugned Judgment, the learned appellate authority dismissed the appeal while concurring with the findings of the learned Rent Controller. Consequently, the tenant was given two months time to vacate the premises. ( 3 ) THE case of the landlady was that she being the owner of the premises bearing municipal No. 3-4-86/a situate at tobacco bazaar, Secunderabad, let out the premises to the tenant on monthly rent of Rs. 600/- exclusive of the property tax and electricity charges. The premises in question is a non- residential premises. The tenant executed a lease agreement dated 01-03-1982 for a period of 11 months. After expiry of 11 months, the tenant continued as the tenant holding over. The rent was payable in advance on or before 5th of every month. The tenant was irregular in payment of rents and committed default from January, 1989 to June, 1990 i. e. for a period of 18 months in a total sum of rs. 10,800/- despite the repeated requests and demands. Besides that, the tenant secured an alternative accommodation of his own. It was her further case that she bona fide required the premises for additional accommodation for her business. ( 4 ) THE case of the tenant was that he had been regular in payment of rent and the husband of the landlady used to collect the rents from the shop of the tenant even during his absence in the shop but was never in the habit of issuing receipts. He was not in arrears to the extent of Rs. He was not in arrears to the extent of Rs. 10,800/- as alleged. The rent was fixed initially at Rs. 500/-per month and was enhanced to Rs, 600/- later and the tenant had been paying the same. He denied the bonafide requirement of the landlady and his securing alternative accommodation of his own. ( 5 ) AT the time of enquiry two witnesses were examined and the documents-Exs. P-1 to P-51 were got marked on the side of the landlady. The tenant himself was examined as R. W. 1 besides examining two other witnesses being R. Ws. 2 and 3 and got exs. R-1 to R-18 marked. ( 6 ) APPRECIATING the evidence both oral and documentary adduced on either side, the learned Rent Controller on the point of wilful default was of the view that the burden lies on the tenant to show that he paid the rents but miserably failed to establish the same by proving Exs. R-l and R-2 and the entries therein marked as Exs. R-3 to 14 and r-15 respectively and, therefore, having regard to the conduct of the tenant, held that the tenant committed wilful default in paying the rents. The appellate Court too concurred with the said finding. ( 7 ) SRI V. Rajagopal Reddy, learned counsel appearing for the revision petitioner tenant, would contend that the conduct of the landlord in accepting the rents when paid intermittently at irregular intervals would establish a practice in deviation to the earlier practice of paying the rents on or before 5th of every month; and that since the landlady failed to issue a notice asking the tenant to pay the rents regularly the practice further becomes reinforced; and that it was a clear case of waiver on the part of the landlady since she failed to resort to the provisions of section 11 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 ( the Rent control Act for brevity ). ( 8 ) PER contra, Sri M. V. S. Suresh Kumar learned counsel appearing for the respondent-landlady, contends that no such case has been set up specifically in the counter as has now been argued by the learned counsel for the revision petitioner-tenant and, therefore, all this is nothing but an afterthought. ( 8 ) PER contra, Sri M. V. S. Suresh Kumar learned counsel appearing for the respondent-landlady, contends that no such case has been set up specifically in the counter as has now been argued by the learned counsel for the revision petitioner-tenant and, therefore, all this is nothing but an afterthought. ( 9 ) THE only ground upon which the eviction in this case was ordered by the learned Rent Controller and affirmed by the learned appellate authority was the ground of wilful default. ( 10 ) THE jural relationship of landlady and tenant is not in dispute. Although it is said that the monthly rent initially fixed was rs. 500/- and was enhanced later to rs. 600 /-, the quantum of rent to be paid ultimately being Rs. 600/- is not very much in dispute. The specific case of the landlady was that the tenant was irregular in paying the rents and committed wilful default in paying rents from January, 1989 to June, 1990 i. e. for a period of 18 months. The tenant who had sought to establish that he had been paying the rents regularly relied upon exs. R-l and R-2, daybook and ledger respectively maintained by him. The entries therein have been marked in this case as exs. R-3 to R-14 and R-15. The entries in account books maintained in regular course of business are no doubt relevant under section 34 of the Indian Evidence Act. But the entries which are not supported by any vouchers nor proved to have been maintained in regular course of business becomes quite irrelevant. Therefore, the tenant who is seeking to rely very much upon Exs. R-l to r-15 should in the first instance establish that Exs. R-l and R-2 have been maintained in regular course of business and then prove the entries made therein which is the subject matter of appreciation by the Court about the truth or otherwise and the veracity of the same. Having said that the entries have been made by the Clerk, no attempt has been made in that direction to prove that the entries have been made in due course of business by examining the concerned. In the absence of any such proof, the entries are nothing but self-serving entries made in the registers and therefore, they lose every efficacy and probative value. In the absence of any such proof, the entries are nothing but self-serving entries made in the registers and therefore, they lose every efficacy and probative value. ( 11 ) THE contention of the learned counsel appearing for the revision petitioner tenant appears to be three fold, namely, (i) that a practice has been developed in view of the conduct of landlady in having received the rents albeit paid intermittently at irregular intervals; (ii) that no notice was issued asking the tenant to pay the rents regularly which is mandatory and, therefore the practice gets automatically reinforced; and (iii) that it is a clear case of waiver on the part of the landlady. ( 12 ) BEFORE adverting to the three contentions raised by the learned counsel, it may be reiterated here that the plea inter alia in the counter specifically taken by the tenant was that he was regular in paying the rents and there was no practice of issuing receipts by the landlady. The case now sought to be set up, having regard to certain of the admissions made by the witnesses when examined on oath, seems to be altogether different. To substantiate the said contentions, the learned counsel seeks to rely upon certain of the admissions made by p. Ws. 1 and 2 in their evidence. P. W. 1 admitted in his evidence that he used to go and collect monthly rents from the tenant at one stage and yet another stage he admitted that from 1982 to 1985 the tenant did not run the business, during that period the shop of the respondent remained closed and during that period the respondent used to come and pay the rents to him at his house or wherever he meets him. P. W. 2admitted in her evidence that on some occasions the tenant used to pay only when they went and demanded the rents and before that he was paying regularly. Yet another stage, she admitted in her evidence that in the beginning the tenant used to come and pay the rents and later her husband was going and collecting the rents. Yet another stage, she admitted in her evidence that in the beginning the tenant used to come and pay the rents and later her husband was going and collecting the rents. She further admitted in her evidence that they did not have anything in writing to show for which months the tenant paid rents and for which months he did not pay and she received three months rent in 1990 through money order and the rents were for June, july and August, and that she did not know to which year they pertain to. Admissions by themselves coupled with documentary and oral evidence sought to be relied upon by the tenant could not squarely establish the alleged practice of the landlady accepting by her conduct the irregular payments made by the tenant and such conduct has developed into a practice in deviation to the contractual obligations of the tenant to pay the rents on or before 5th of every succeeding month. In ordinary course, the tenant is obliged to pay the rents regularly as agreed on or before 5th of every succeeding month. If he is irregular in paying the rents and by the conduct of the landlady that irregularity is condoned and accepted in which case it would transform itself into a practice or separate contract by itself in which event the landlady can no more contend that the tenant committed default in paying the rents. Such a plea, therefore, has to be taken specifically in the counter inter alia and then to be established by evidence, which is clear, cogent and unequivocal. In the process, the tenant may lead his own evidence or seek to rely upon the admissions made, if any, either by the landlady or her witnesses. ( 13 ) IN the first instance, the tenant seeks to rely upon the admissions made by P. Ws. 1 and 2. As can be seen from the admissions hereinabove excerpted, they fall short of the plea of specific practice of paying the rents at irregular intervals and accepting the same by the landlady. They only show that the landlady who is going to collect the rent and some times the tenant used to come and pay the rent, except one admission made on the part of P. W. 2 that she received three months rent in the year 1990. They only show that the landlady who is going to collect the rent and some times the tenant used to come and pay the rent, except one admission made on the part of P. W. 2 that she received three months rent in the year 1990. Such an admission in my considered view, would not automatically establish that by conduct the landlady condoned irregular payments made by the tenant. Therefore, I am afraid I cannot accede to the said contention of the learned counsel appearing for the revision petitioner- tenant that it is a case where the conduct of the landlady in accepting the rents intermittently would establish a separate practice pay ing the rents at irregular intervals. ( 14 ) THE default set up in this case was for the period between January, 1989 to june, 1990 i. e. for a period of 18 months, preceding the date of filing of the eviction petition. It is obvious from the record that for such a length of time there was no action on the part of the landlady for collecting the rents. Having regard to the said circumstance, it is the contention of the learned counsel for the revision petitioner-tenant that unless a notice in writing is given asking the tenant to pay the rents regularly, the landlady cannot legitimately contend that it is a case of wilful default. To buttress the said contention, the learned counsel seeks to place reliance upon firstly the Judgment of the Apex Court in s. P. Deshmukh v. Shah Nihal Chand. Having regard to the evidence on record which shows that the tenant had been paying the rent at an interval of three or four months, which the landlord had been willingly accepting and always without even so much of murmur and the landlord never complained of any irregularity on the part of the tenant in paying the rent, it was held that the Courts were wrong in holding that it was a case of wilful default inasmuch as the contract to that effect could be spelt out from the conduct of the parties. To the same effect is the Judgment of this Court in B. Sanyasi Raju v. K. Kurmanna. To the same effect is the Judgment of this Court in B. Sanyasi Raju v. K. Kurmanna. ( 15 ) IN Rashik Lal v. Shah Gokuldas it has been held by the Apex Court thus:"but if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insists upon it. "in the said Judgment, the Apex Court relied upon its earlier Judgment in S. P. Deshmuk s case (referred to supra ). In para 8 it has been specifically observed that if the landlord receives the rent under a protest and warns the tenant to be regular in payment in future, he cannot be assumed to have agreed to a modified agreement in that regard. Therefore, if the landlord receives the rent without any demur by his conduct in having allowed the tenant to assume that he is allowed to pay the rents at irregular intervals regardless of the contract, he cannot, all of a sudden having lulled the tenant to be under that impression by springing a surprise, initiate action of eviction. On the other hand, if the landlord receives the rent being paid at irregular intervals by warning the tenant that he should henceforth to be regular in paying the rent, such a conduct would not give rise to the necessary cause for assumption on the part of the tenant that the practice was accepted by the landlord. Under those circumstances, the landlord was obliged to give a notice demanding the tenant to pay the rent regularly. Again in another short noted Judgment of this Court in Syed dastagiri Khadriv. K. S. Saleem Basha and others a learned single Judge has taken the same view. ( 16 ) ANYWAY relying upon its earlier two judgments referred to supra again the Apex court had an occasion to reiterate the same principle in Swami Ratanbabu v. Wamanrao shankarmo Deshmukh. It needs no multiplicity of authorities to be cited having due regard to the three authoritative pronouncements of the Apex Court on the point. ( 16 ) ANYWAY relying upon its earlier two judgments referred to supra again the Apex court had an occasion to reiterate the same principle in Swami Ratanbabu v. Wamanrao shankarmo Deshmukh. It needs no multiplicity of authorities to be cited having due regard to the three authoritative pronouncements of the Apex Court on the point. The basis for the proposition appears to be the s. P. Deshmukh s case. ( 17 ) TURNING to the instant case, there is no evidence to show that by conduct of the landlady she accepted the irregular payments said to have been made by the tenant nor it has been specifically pleaded in the counter inter alia that there has been such a practice. The specific case of the landlady was that the tenant committed wilful default in paying the rents from January 1989 to June, 1990 i. e. for a period of 18 months. Although it has also been averred in the petition that the tenant was a wilful and chronic defaulter in payment of rents, the pleadings, in my considered view would not, therefore, offer the basis to give the necessary conclusion that it was a case of payment of rents intermittently at irregular intervals and by conduct of the parties, a practice in that regard has been developed later in deviation to the earlier contract whereunder the tenant is obliged to pay the rent on or before 5th of every succeeding month. The so-called admissions sought to be relied upon in the evidence of P. Ws. 1 and 2 do not lead to any such legitimate conclusion. Neither P. W. 1 nor P. W. 2 did not in fact plead that the tenant had been paying the rents from the beginning at irregular intervals nor it was elicited from their evidence that they had been accepting the same without any demur. Factually, no such practice is discernable from the record. Therefore, the decisions sought to bu relied upon by the learned counsel appearing for the revision petitioner- 5. 1996 (1) All India Rent Control Journal 17. tenant would not render any assistance to the revision petitioner-tenant in this case. Factually, no such practice is discernable from the record. Therefore, the decisions sought to bu relied upon by the learned counsel appearing for the revision petitioner- 5. 1996 (1) All India Rent Control Journal 17. tenant would not render any assistance to the revision petitioner-tenant in this case. ( 18 ) ABOVE all assuming for a moment that such admissions could conveniently be elicited by wit of the cross-examining counsel from the evidence of P. W. 1, in the absence of any specific plea set out in the counter in that regard, I am afraid that such a stand taken at a later stage can be countenanced by the courts legitimately. It may be remembered that here the practice develops into an altogether different contract in deviation to the earlier contract between the parties and, therefore such contract shall have to be specifically pleaded and proved by the tenant before trying to extricate himself from being called as a defaulter willfully. ( 19 ) TURNING to the other contention that having regard to the length of the period of default i. e. for a period of 18 months and on account of inaction on the part of the landlady, therefore, it is a case of waiver, the learned counse appearing for the revision petitionertenant seeks to place reliance upon a judgment of the Apex Court in K. A. Ramesh v. Susheela Bai. At the end of para 8 of the said judgment, it was observed by the Apex Court as follows:"it can, therefore, easily be said that the respondents waived this right available to them under the statute presumably because they themselves were satisfied on getting full payment of arrears of rent by encashing the bank draft dated 2nd February, 1989. "that was a case where the tenant had sent the rents by means of a bank draft dated 02-02-1989 for the full amount of arrears. The bank draft was encashed by the landlord. "that was a case where the tenant had sent the rents by means of a bank draft dated 02-02-1989 for the full amount of arrears. The bank draft was encashed by the landlord. Not only that, no application during the pendency of the eviction proceeding was filed under Section 11 (4) of the Act and, therefore, when no action was taken by the landlady requesting the Rent Controller stop the proceedings under Section 11 (4) of the Act and when the bank draft was sent for the full amount of the arrears it was encashed by the landlord on account of which it was said that the landlord waived his right available to him under Section 11 (4) to ask the Rent Controller to stop the further proceedings in the matter and direct the tenant to evict the premises. The facts in the instant case are not such. It is not the case of the tenant that he paid the total amount of rs, 10,800, - representing the rent from january 1989 to June, 1990 i. e. for a period of 18 months and the same was accepted by the landlady preceding the date of filing of the eviction petition. Having regard to the same, the tenant cannot legitimately raise the plea of waiver in this case. ( 20 ) IT is now well settled that the landlord is in obligation to issue a notice in writing calling upon the tenant to pay the rents whenever he commits default. Having regard to the conduct of the parties in a particular case, issuing or non-issuing of noticebecomes relevant, when the tenant set up a separate practice but not in each and every case. ( 21 ) FOR the foregoing reasons, I see no merits in all the three contentions set forth by the learned counsel appearing for the revision petitioner tenant in this case. Therefore, there are no compelling circumstances for this court to interfere with the concurrent finding of both the Courts below. ( 22 ) IN the result, the Civil Revision Petition fails and is dismissed. Consequently, the revision petitioner-tenant is given six months time from today to vacate the premises and hand over the same to the landlady.