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2004 DIGILAW 581 (AP)

Sugnibai and Shakuntala v. Rafat Ali

2004-06-18

DALAVA SUBRAHMANYAM

body2004
DALAVA SUBRAHMANYAM, J. ( 1 ) THE above revisions are directed against the common judgment and decree in r. A. No. 112 of 2002, R. A. No. 165 of 2002 and I. A. No. 1023 of 2002 in R. A. No. 112 of 2002, dated: 08-11-2002 on the file of Chief judge, City Small Causes Court, Hyderabad in allowing R. A. No. 112 of 2002 and i. A. No. 1023 of 2002 and dismissing the cross-Appeal in R. A. No. 165 of 2002. ( 2 ) THE matrix of the case, in brief are as follows: the revision petitioners filed R. C. 556 of 1999 on the file of the II Additional Rent controller, Hyderabad under Section 10 (2) of A. P. Buildings (Lease, Rent and Eviction) control Act, 1960 praying for eviction of the respondent/tenant viz. , Rafat Ali from the petition schedule property situated at mahaboobgunj, Hyderabad and to deliver vacant possession. The petitioners contended that they are the owners and landlords of petition schedule premises situated at Mahaboobgunj and the respondent is the tenant since about 26 years. The tenancy is oral and month-to month. The rent was payable on or before 5th of every calendar month. The monthly rent for the mulgies was at Rs. 250. 00. R. C. No. 443 of 1988 was filed against the respondent/tenant on the ground of wilful default in payment of rents and the said petition was dismissed on 13-09-1993 and thereafter R. A. No. 484 of 1993 was also dismissed on 07-04-1997 confirming the order of the Rent Controller. Then the matter was taken to the High Court in c. R. P. No. 1750 of 1997, which was allowed on 02-01 -1998 and the tenant preferred the civil Appeal No. 5777 of 1998 and the supreme Court set aside the order of the high Court in R. A. No. 484 of 1993. During the pendency of the R. C, the petitioner filed i. A. No. 524 of 1990 and the respondent was directed to deposit the rents at the rate of rs. 250/- per month. The tenant failed to deposit the rent for number of years in accordance with the provisions of Section 8 of the Act and committed wilful default and thereupon the petitioners filed R. C. No. 556 of 1999. 250/- per month. The tenant failed to deposit the rent for number of years in accordance with the provisions of Section 8 of the Act and committed wilful default and thereupon the petitioners filed R. C. No. 556 of 1999. The respondent committed wilful default for 21 months in payment of rents from 01-01-1998 to 30-09-1999 and the total amount withheld is Rs. 5,250. 00. It was further contended that the deposit of rent should be as per statute and the deposit of rent in R. C. No. 443 of 1988 was not valid under the provisions of the Act and hence the tenant committed wilful default and consequently the petition was filed. The tenant filed counter denying the averments contained in the petition. The tenant contended that he has been depositing the rents regularly in R. C. No. 443 of 1988 at the rate of Rs. 250. 00 per month. The landlords were asked to furnish the bank account and since the landlords failed to inform the bank account, the rents were being deposited in the Court of Rent Controller in compliance with the earlier orders in R. C. C. No. 443 of 1988. The petitioners having failed to evict the respondents illegally by force have come up with false pleas with oblique motive. The petitioners are aware that the rent was being deposited in R. C. No. 443 of 1988 and hence the petition may be dismissed. ( 3 ) THE petitioners/landlords filed additional pleadings by way of rejoinder. After enquiry the learned II Additional Rent controller passed orders on 21-01-2002 allowing the petition and directing the respondent/tenant to vacate the petition mulgies within two months from the date of order. Aggrieved against the order of eviction, the tenant filed R. A. No. 112 of 2002 and the landlords filed R. A. No. 165 of 2002. The appellate authority after hearing both sides allowed R. A. No. 112 of 2002 and i. A. No. 1023 of 2002 and dismissed the cross-appeal in R. A. No. 165 of 2002. Aggrieved against the order of eviction, the tenant filed R. A. No. 112 of 2002 and the landlords filed R. A. No. 165 of 2002. The appellate authority after hearing both sides allowed R. A. No. 112 of 2002 and i. A. No. 1023 of 2002 and dismissed the cross-appeal in R. A. No. 165 of 2002. ( 4 ) AGGRIEVED against the judgment and decree of the appellate authority, the revision petitioners filed C. R. P. No 5402 of 2002 against the judgment in R. A. No. 112 of 2002, C. R. P. No. 5403 of 2002 against the order allowing I. A. No. 1023 of 2002 and c. R. P. No. 5406 of 2002 in dismissing r. A. No. 165 of 2002. The revision petitioners/landlords in all the revisions contended that the appellate authority committed error in coming to the conclusion that the tenants did not commit wilful default in deposit of rents and consequently they are not liable to be evicted. The appellate authority erred in allowing the petition filed to receive additional documents. The appellate authority failed to give a definite finding that the tenant committed default in payment of rents prior to filing of the Rent Control petition. ( 5 ) NOW the following points arise for consideration in all the above revisions: (1) Whether the Chief Judge, City small Causes Court-cum-Appellate authority committed error in coming to the conclusion that the respondent/tenant has not committed wilful default in payment of rents and thereby not liable for eviction and if so whether the judgment and decree in R. A. No. 112 of 2002 is liable to be set aside? (2) Whether the appellate authority committed error in allowing I. A. No. 1023 of 2002 in R. A. No. 112 of 2002 in receiving the additional documents and if so, whether c. R. P. No. 5403 of 2002 is liable to be allowed? (2) Whether the appellate authority committed error in allowing I. A. No. 1023 of 2002 in R. A. No. 112 of 2002 in receiving the additional documents and if so, whether c. R. P. No. 5403 of 2002 is liable to be allowed? (3) Whether the appellate authority committed error in not giving a definite finding that the deposit of rents to the credit of R. C. No. 443 of 1988 (prior to the filing of R. C. No. 556 of 1999) without following the mandatory provisions under the act and Rules would amount to wilful default in payment of rent and if so whether C. R. P. No. 5406 of 2002 is liable to be allowed?points No. 1 to 3: ( 6 ) THE revision petitioners/landlords filed r. C. No: 556 of 1999 for eviction of the respondent/tenant on the ground that he committed wilful default in payment of rents. The following facts are relevant to arrive at the conclusion whether there was wilful default or not in payment of rents. The landlords filed R. C. No. 443 of 1988 for eviction of the tenant on the ground of wilful default in payment of rent for the period from november 1986 to March 1988. The said petition was dismissed on 30-09-2003 holding that there was no default. The said order of the Rent Controller was confirmed in r. A. No. 484 of 1993 and later the judgment was reversed in C. R. P. No 1750 of 1997 by the High Court. The Supreme Court of India in Civil Appeal No. 5777 of 1998 reversed the order of the High Court and confirmed the order of the trial Court and the appellate authority. During the pendency of R. C. No. 443 of 1988, I. A. No. 524 of 1990 was filed under Section 11 of the Act and as per the directions, the rents were being deposited into Court. The tenant continued to deposit the rents even subsequent to the disposal of the Civil Appeal before the supreme Court. The landlords had no notice about the deposit of rents and subsequently they filed R. C. No. 556 of 1999 for eviction on the ground of wilful default. The tenant continued to deposit the rents even subsequent to the disposal of the Civil Appeal before the supreme Court. The landlords had no notice about the deposit of rents and subsequently they filed R. C. No. 556 of 1999 for eviction on the ground of wilful default. The Rent controller after appreciating the entire evidence came to the conclusion that there was wilful default committed by the tenant, since the tenant has not followed the mandatory provisions of the Act and Rules in depositing the rents. The finding is reversed by the appellate authority. ( 7 ) ADMITTEDLY the proceedings before the supreme Court was finally terminated on 18-11 -1998 and therefore any deposit made to the credit of R. C. No. 443 of 1988 is not valid, since no proceedings were pending before the Court. The tenant ought to have tendered the rents to the landlords and if the landlords refuse to receive the rents then they have to follow the procedure contemplated under Section-8 of the Act. In the instant case, the tenant did not tender the rent to the landlords, but went on depositing the rents to the credit of R. C. No. 443 of 1998 without giving notice about the deposit. Rule 5 (4) of the A. P. Buildings (Lease, Rent and Eviction) Control Rules provides the procedure for deposit of rents. Notice has to be given as contemplated under Rule 16 of the Rules. But in the instant case the tenant has not followed the said procedure. The appellate authority relying on the averments contained in the petition came to the conclusion that the landlords were aware of the deposits. The averments in the petition is to the effect that "the respondent is still continuing to deposit the rents from 11-11-1991 to December 1999. " Relying on the said averments, the appellate authority came to the conclusion that the landlords were aware of the deposit. The averments were made as on the date of application. As on the date of application, the landlords came to know of this fact and that does not mean that they were aware of the deposits as and when they were deposited. Admittedly, the tenant has not followed the mandatory provisions contained under Rule 5 of the Rules. The averments were made as on the date of application. As on the date of application, the landlords came to know of this fact and that does not mean that they were aware of the deposits as and when they were deposited. Admittedly, the tenant has not followed the mandatory provisions contained under Rule 5 of the Rules. The learned Advocate appearing for the revision petitioners relied on a decision reported in Hari Prasad badruka v. Tellukunta Laxmi and others wherein it was held:"though Rule 5 of the Rules does not stipulate any time within which the tenant should file the challans evidencing the deposit of money in the bank into the Court by necessary implication it should be taken that he should file the challans into the court within a reasonable time from the date of deposit. If notice of deposit was not given by the tenant to the landlord, such conduct of tenant being contrary to provisions of Rule 5 (4) read with rule 16 of the Rules amounts to committing wilful default in payment of rent and therefore landlord is entitled to relief of eviction of tenant. " ( 8 ) THE appellate authority relying on the averments made in the petition, imputed knowledge which is an error apparent on the face of the record. It is mandatory that the tenant has to follow the procedure contemplated under the Act and Rules for deposit of rents. The conduct of the tenant would amount to wilful default, since he has not followed the procedure contemplated under Rule 5 read with Rule 16 of the Rules. The appellate authority thus committed error in coming to the conclusion that there was no wilful default on the part of the tenant and therefore the judgment of the appellate authority is liable to be set aside and consequently C. R. P. No. 5402 of 2002 is liable to be allowed. ( 9 ) THE appellate authority allowed I. A. No. 1023 of 2002 in R. A. No. 112 of 2002 on the ground that the documents are necessary to rebut the contention of the parties. The appellate authority failed to take into account that the documents were filed before the Rent Controller and the said petition was dismissed on the ground that they were filed at the stage of arguments and accordingly the said petition was dismissed. The appellate authority failed to take into account that the documents were filed before the Rent Controller and the said petition was dismissed on the ground that they were filed at the stage of arguments and accordingly the said petition was dismissed. As against the dismissal of the petition, the matter was carried to the appellate authority and the High Court and the said orders were confirmed. In such circumstances, the appellate authority ought not to have allowed the petition at the appellate stage, since the very same documents were not received by the Rent controller. The appellate authority has not given any reasons for allowing the petition to receive the additional documents. For the above said reasons, the appellate authority in so far as allowing the additional documents petition is liable to be set aside and consequently C. R. P. No. 5403 of 2002 is liable to be allowed. ( 10 ) THE appellate authority dismissed r. A. No. 165 of 2002. Though the appellate authority expressed doubt whether the appeal was maintainable or not, no finding was given to that effect. The revision petitioners contended that the Rent controller has not given any finding that there was wilful default in payment of rent during specified period. However, the Rent controller gave a finding that the deposit of rents to the credit of R. C. No. 443 of 1988 was contrary to the provisions of the Act and rules and therefore the tenant was liable to be evicted and allowed the petition. In view of the fact that the eviction petition was allowed by the Rent Controller, the landlords have no cause of action to file R. A. No. 165 of 2002 and therefore the appeal was not maintainable and hence the appellate authority rightly dismissed the appeal and consequently C. R. P. No. 5406 of 2002 is liable to be dismissed. ( 11 ) IN the result, for the reasons mentioned above, C. R. P. No. 5402 of 2002 and C. R. P. No. 5403 of 2002 are allowed setting aside the judgment and decree in r. A. No. 112 of 2002 and the order in I. A. No. 1023 of 2002 and the order of the Rent controller in R. C. No. 556 of 1999 is restored. The respondent/tenant is directed to vacate the petition schedule mulgies and deliver vacant possession to the landlords within two months from the date of this order and C. R. P. No. 5406 of 2002 is dismissed. No order as to costs.