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Andhra High Court · body

2006 DIGILAW 1287 (AP)

Omkar Khasim v. Dabburi Madhusudhana Rao

2006-10-19

V.ESWARAIAH

body2006
O R D E R This civil revision petition is directed against the judgment and decree dated 23.07.2003 passed in R.C.A.No.1 of 1998 by the Rent Control Appellate Authority cum Senior Civil judge, Vizianagaram confirming the order dated 28.10.1997 passed in R.C.C.No.3 of 1994 by the Rent Controller cum Principal District Munsif, Vizianagaram. 2. Petitioner herein is the tenant and the respondent is the landlord in respect of the house bearing Door No. 16-1-53 - 54, Municipal Assessment No.6232 in T.S.No.36 situated on the southern row of buildings to the Mahatma Gandhi Road, Vizianagaram hereinafter referred to as the petition schedule premises. 3. The landlord filed R.C.C.No.3 of 1994 seeking eviction of the tenant on the ground of wilful default in payment of rents under Section 10 (2) (i) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘the Act’) for the months March to May 1994. The said petition was allowed by order dated 28.10.1997 directing the tenant to vacate the petition schedule premises within three month from the date of the said order. Aggrieved by the same, the tenant filed R.C.A.No.1 of 1998 and the appellate authority by judgment dated 23.07.2003 holding that the non-payment of rents for the months of March to May 1994 as wilful on the part of the tenant and confirming the order of the lower Court dismissed the appeal ordering eviction of the tenant. Aggrieved by the said judgment the tenant filed this revision petition under Section 22 of the Act. 4. It is the case of the landlord in R.C.C.No.3 of 1994 that he pur-chased the petition schedule premises vide registered sale deed dated 26.02.1994 from one Yerra Venkata Ramana and others. The previous owners of the petition schedule premises inducted the tenant into the building on a monthly rent of Rs.575/- and the lease was oral. His vendors attorned the tenant and symbolic possession was given to him. It is stated that immediately after the purchase of the petition schedule- premises, he issued a registered notice - ExA1 dated 25.03.1994 to the tenant informing him that he purchased the petition schedule premises and asked the tenant to pay the rent from 01.03.1993 to him only. The tenant received the said notice and sent a belated reply with false and untenable allegation under Ex.A2. The tenant received the said notice and sent a belated reply with false and untenable allegation under Ex.A2. It is stated that the said reply was given without any bonafides and the tenant committed default in payment of rents from March 1994 at Rs.575/- per month up to the date of filing of the petition, which was filed on 20.06.1994. 5. The tenant filed a counter stating that the said premises originally belonged to one Yerra Krishna Murthy and a litigation was pending between him and Yerra Krishna Murthy in R.C.C.No.33 of 1986. It is stated Chat he deposited the rents up to June 1994 in the said petition and since July 1994 he has been depositing the rents in the present petition. It is further stated that he has been regularly depositing the rents in the said RCC and there was no arrears of rent from 01.03.1994. The said counter has been filed on 13.06.1995. 6. The only question that arises for consideration is as to whether the tenant committed wilful default in payment of rents for the months March to May 1994, as admittedly the eviction petition has been filed on 20.06.1994, the subsequent default in payment of rents is not relevant as no application has been filed under Section 11 of the Act seeking a direction to the tenant to deposit the rents so as to enable him to contest the petition. 7. Ex.A1 goes to show that the landlord has purchased the petition schedule premises from Yerra Narayanamma and others on 26.02.1994 and accordingly demanded the tenant to pay the rents from 01.03.1994 to him. As already stated Ex.A2 reply was given doubting the ownership on the ground that the previous landlord has not given any notice of attornment of tenancy. 8. The landlord, examined as P.W.1, stated he filed the eviction petition in the month of June 1994 on the ground that the tenant committed wilful default in payment of rents for the months of March to May 1994. He further stated that he did not know about the deposit- of the rents by the tenant in R.C.C.No.33 of 1986 and he did not know anything about the payment of tax by the tenant. He further stated that he did not know about the deposit- of the rents by the tenant in R.C.C.No.33 of 1986 and he did not know anything about the payment of tax by the tenant. He further stated that the tenant committed wilful default in payment of rents from March to May 1994 and he did not know about the deposit of rents by the tenant by way of challans in R.C.C.No.33 of 1986. 9. The tenant, examined as R.W.1, stated that he took the petition schedule premises from the original owner Yerra Krishna Murthy and carrying on cloth business and the original owner filed R.C.C.No.33 of 1986 seeking eviction and he had been depositing the rents at Rs.575/- in the said petition. It is stated that he has not committed any wilful default in payment of rents. It is stated that-under Exs.B1 and B2 he paid the rents and there is no wilful default and when the municipality served an occupiers notice on him demanding to pay Rs.745/- towards property tax for half year ending with 30.09.1993 he paid the amount to the municipality on behalf of the landlord. It is stated that there were no disputes between him and the original owner and the rent control proceedings were also there and there was exchange of notices. It is stated that during the pendency of the said eviction petition the landlord purchased the petition schedule premises from his previous landlord Yerra late Krishna Murthy and the present landlord knows that there are disputes between him and his previous landlord and knowing fully well about the tenancy and the disputes, the landlord purchased the petition schedule premises. It is stated that the landlord never informed him either orally or in writing about the purchase of the petition schedule premises from his previous landlord. It is further stated that he has deposited the rents for the months of April and May 1994 on 17.06.1994. 10. R.W,2, C. Samba Murthy - working as Senior Assistant in District Treasury Officer, Vizianagaram, produced two certified copies of credit of the District Treasury Officer, Vizianagaram, for Rs.1150/and Rs.575/- under Challan Nos.204 dated 02.07.1994 and 256 dated 28.06.1994 of the Principal District Munsif’s Court. 10. R.W,2, C. Samba Murthy - working as Senior Assistant in District Treasury Officer, Vizianagaram, produced two certified copies of credit of the District Treasury Officer, Vizianagaram, for Rs.1150/and Rs.575/- under Challan Nos.204 dated 02.07.1994 and 256 dated 28.06.1994 of the Principal District Munsif’s Court. He stated that Ex.B4 discloses that the amount was remitted in Bank on 28.06.1994, likewise, Ex.B3 amount was remitted into the Bank on 02.07.1994 and he did not know to what period Exs.B3 and B4 relate to. 11. Ex.B1 goes to show that an amount of Rs.575/- was deposited vide Challan No.256 dated 28.06.1994 and Ex.B2 goes to show an amount of Rs.1150/- was deposited vide Challan No.204 dated 02.07.1994. Thus, both the Courts below held that the rent of March 1994 was deposited on 28.06.1994 and rents for April and May were deposited on 02.07.1994 in the said R.C.C.No.33 of 1986. 12. Sri Vedula Venkataramana, the learned counsel appearing for the petitioner/tenant submits that the original landlord has not given any attornment and till the tenant verified the transfer of ownership he did not know whether the petitioner in the eviction petition was the landlord or not, more so, when the earlier eviction petition was pending between the tenant and original landlord and as the previous landlord has not given any notice of attornment the tenant has been depositing the rents in the pending eviction petition. However, of the aforesaid facts and circumstances, it cannot be said that there is wilful default in payment of rents. The learned counsel further submits that the learned Rent Controller ought to have given 15 days time to the tenant to deposit the said rents as the default was not wilful and the tenant explained satisfactory reasons for not paying the rents to the landlord. 13. On the other hand, Sri Venkateswara Rao Gudapati, learned counsel appearing for the respondent/landlord submits that even assuming that the rents for the aforesaid three months have been paid admittedly the rents have not been paid to the previous landlord within time, as the rent for the month of March 1994 has been deposited only on 28.06.1994 and the rents for the months of April and May 1994 have been paid on 02.07.1994 and therefore, there was wilful default in payment of rents. 14. I have perused the orders of the learned Rent Controller and the Appellate Authority. 14. I have perused the orders of the learned Rent Controller and the Appellate Authority. The learned Rent Controller has not given any finding that the non-payment of rents was wilful on the part of the tenant but the rent Appellate Authority held that the belated payment of rents is wilful on the part of tenant as even after the issuance of the notice there was no justification on the part of the tenant in not paying the rents to the landlord. A perusal of Ex.A1 notice goes to show that the landlord purchased the petition schedule premises from Y. Narayanamma and others on 26.02.1994 and admittedly, the landlord has not given any notice immediately but the notice was given only about a month later on 25.03.1994 stating that he purchased the petition schedule premises from Y. Narayanamma and others. The particulars of the sale deed has not been mentioned and the previous owner was stated as Y. Narayanamma but whereas in the rent control petition it is stated that he purchased the petition schedule premises from Yerra Venkata Ramana and others and in his deposition he stated that he purchased the property from Yerra Krishna Murthy and others. 15. In view of the aforesaid documentary evidence, wherein the landlord has not mentioned either in the notice or in the rent control petition that he purchased the property from Yerra Krishna Murthy, a genuine doubt arose in the mind of the tenant as to the transfer of ownership, as such there was a delay in payment of rents. However, in view of the aforesaid facts and circumstances of the case, the learned Rent Controller ought to have given a notice giving 15 days time to the tenant to pay the rents to the landlord, as the said rents were deposited to the credit of the pending eviction petition filed by the previous learned counsel. 16. The Supreme Court in R.R.R. GOPALA RAO V. N. G. SENARARA0(1) held that if the tenant genuinely believes that there was no obligation to pay, the rent to the landlord, the Rent Controller should invoke the proviso to sub-section (2) of Section 10 of thr Act calling upon the tenant to pay arrears within certain time and failure to do so would result in miscarriage of justice. 17. 17. In view of the aforesaid judgment, I am of the opinion that the there is no wilful default in payment of rents on the part of the tenant as he genuinely believed that he had no obligation to pay the rent to the landlord, therefore, the Rent Controller ought to have invoked the proviso to sub-section (2) of Section 10 of the Act giving the tenant reasonable time not exceeding 15 days to pay the rents due by him to the landlord. 18. Following the aforesaid judgment, the civil revision petition allowed setting aside the judgment and decree of the Rent Control Appellate Authority and the matter is remitted to the Rent Controller with a direction that he would give the benefit of the said proviso to the tenant in accordance with law. There shall be no order as to costs. --X—