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2006 DIGILAW 659 (AP)

RAJENDER PRASAD AGARWAL v. MYSARI ANASUYA

2006-06-13

V.ESWARAIAH

body2006
( 1 ) PETITIONERS herein are the tenants in respect of the premises bearing no. 15-9-506, situated in Mahaboobgunj, hyderabad which is part and parcel of the big building bearing M. No. 15-9-507. Respondents herein who are the landlords of the said premises filed R. C. No. 11 of 1997 on the file of the Rent Controller, hyderabad, seeking eviction of the petitioners/tenants under Section 10 (2) (1) of the A. P. Buildings (Lease, Rent and Eviction)Control Act, 1960 (for brevity, the Act)on the ground of wilful default in payment of rents from April, 1991 to 31-12-1996 i. e. , for sixty nine months @ Rs. 1,000/- per month amounting to Rs. 69,105/- and the rent Controller allowed the said petition by order dated 17-8-1999 against which the petitioners-tenants filed R. A. No. 305 of 1999 on the file of the Additional Chief Judge, city Small Causes Court, Hyderabad and the learned Judge by order dated 20-1-2003 dismissed the appeal confirming the order of the Rent Controller. Aggrieved thereby the tenants came up with the present civil revision petition. ( 2 ) FOR the purpose of convenience, the parties are hereinafter referred to as they are arrayed in the trial Court. ( 3 ) IT is the case of the landlords that the premises is a non-residential premises and the tenants obtained the said premises on a monthly rent of Rs. 105/- excluding electricity and other charges and the landlords filed R. C. No. 361 of 1991 on the file of the II Additional Rent Controller, hyderabad against the tenants for fixation of fair rent from Rs. 105/- to Rs. 2,500/-and the Rent Controller by order dated 28-12-1994 fixed the fair rent @ Rs. 1,000/-per month with effect from the date of the said petition i. e. , from April, 1991. The tenants also filed R. C. No. 393 of 1991 on the file of the II Additional Rent Controller seeking deposit of the rent with effect from march, 1991 and the said application was allowed without prejudice to the rights of the landlords. It is the further case of the landlords that the tenants were not depositing the fair rent fixed by the Rent controller @ Rs. 1,000/- per month and therefore there is wilful and deliberate default in payment of rents and accordingly eviction petition has been filed. It is the further case of the landlords that the tenants were not depositing the fair rent fixed by the Rent controller @ Rs. 1,000/- per month and therefore there is wilful and deliberate default in payment of rents and accordingly eviction petition has been filed. ( 4 ) IT is the case of the tenants that against the order passed by the Rent controller in R. C. No. 361 of 1991 fixing the fair rent under Section 4 of the Act by enhancing the rent from Rs. 105/- to Rs. 1,000/-, R. A. No. 128 of 1995 has been filed and the tenants have been regularly depositing the rent @ Rs. 105/- as per the orders of the Rent Controller in R. C. No. 393 of 1991 and they are the tenants for the last 27 years i. e. , much prior to the purchase of the premises by the landlords and even on the date of filing of the eviction petition, the entire rent @ Rs. 105/- has been deposited and there are no arrears as regards the agreed monthly rent of Rs. 105/- and the fair rent fixed by the Rent Controller has not become final as the same has been challenged by the tenants in R. A. No. 128 of 1995 and therefore it cannot be said that there is a default muchless wilful default committed on the part of the tenants. There is no dispute with regard to the relationship of landlord and tenant and there is no dispute that the suit premises was a non-residential portion and the rent prior to the fixition of fair rent was Rs. 105/-exclusive of the electricity and other charges and the monthly rent payable on or before 5th of each succeeding month in accordance with the calendar month. There is no dispute that the tenants were there since last twenty seven years and also there is no dispute that the Rent Controller fixed fair rent under Section 4 of the Act from Rs. 105/- to Rs. 1,000/- with effect from 1-4-1990 and the tenants failed to pay the enhanced rent but they were paying rent @ Rs. There is no dispute that the tenants were there since last twenty seven years and also there is no dispute that the Rent Controller fixed fair rent under Section 4 of the Act from Rs. 105/- to Rs. 1,000/- with effect from 1-4-1990 and the tenants failed to pay the enhanced rent but they were paying rent @ Rs. 105/- in spite of fixing the fair rent, on the ground that the fair rent fixed by the Rent Controller has attained finality as they have filed R. A. No. 128 of 1995 and there is no dispute that the enhanced rent has not been paid from April, 1991 to 31-12-1996. All the above facts were not at all in dispute. The only contention of the landlords is that as per the judgment of this Court in Frank Hayden v. M. Lakshman, 1961 An. W. R. 308, the determination of the fair rent fixed by the appellate Court will date back to the date of the order of the Rent Controller because the order of the appellate authority is the order which the rent Controller ought to have been passed, and no doubt the Rent Appeal No. 128 of 1995 was dismissed confirming the fair rent fixed by the Rent Appellate Court @ Rs. 1,000/- from april, 1991 against which C. R. P. No. 5669 of 1999 was filed before this Court and this court while admitting the same granted interim stay on depositing @ Rs. 500/- per month and ultimately the petition was dismissed on 1-7-2002 and the tenants have complied with the interim order and thereafter, immediately after dismissal of the civil revision petition within the stipulated time the entire rents have been deposited by the tenants and therefore the fair rent shall be deemed to have been fixed from april, 1991, when the order of the Rent controller has attained finality by order of this Court dated 1-7-2002 in C. R. P. No. 5669 of 2002. It is stated that the order of the rent Controller and the Rent Appellate authority have been merged in the order of this Court in the said civil revision petition and therefore if there is any default in not paying the rents as per the orders of this Court then only it shall be construed and presumed that there is a wilful default. It is further stated that as per section 15 of the Act fixation of the fair rent under Section 4 of the Act is not an exclusive order and the orders under sections 10,12, 13,14,20,21 and revisional order under Section 22 of the Act are only executable orders but not every order, and therefore the order of the Rent Controller under Section 4 of the Act is not an executable order and also the order of the rent Controller shall date back when it attained finality in C. R. P. No. 5669 of 1999 dated 1-7-2002. Thus, it is stated that there may be a delay in payment of the rents but it cannot be said that there is a wilful default of payment of rents on the part of the tenants. ( 5 ) IT is the further case of the tenants that fixation of the fair rent has not attained finality and immediately after the dismissal of R. A. No. 128 of 1995 on 8-11-1999 the difference of the fair rent fixed at Rs. 93,080/- payable upto December, 1999 was deposited and thereafter from january, 2000 onwards the tenants continued to deposit the rent @ Rs. 1,000/- per month and as per the interim order, dated 28-7-2000, of this Court in C. R. P. No. 5669 of 1999 the tenant continued to deposit rent @ Rs. 500/- per month from August, 2000 and after dismissal of the said C. R. P. on 1-7-2002 the differential amount of Rs. 500/-per month was deposited within a stipulated time of three months and also continued to deposit the monthly rent @ Rs. 1,000/ -. Thus it is the case of the petitioners that the non-payment of the differential amount fixed by the Rent Controller as per the fixation of the fair rent as ordered by the rent Controller from April, 1991 to december, 1996 is not wilful or deliberate as the said order of the Rent Controller attained finality only on 1-7-2002. The tenants have relied on the same judgment cited supra. ( 6 ) THE question that arise for consideration is whether the tenants wilfully defaulted in payment of the rents by taking the risk in not depositing the differential amount of the fair rent fixed by the rent Controller in R. C. No. 361 of 1991 dated 28-12-1994 for the period from April, 1991 to December, 1996. ( 6 ) THE question that arise for consideration is whether the tenants wilfully defaulted in payment of the rents by taking the risk in not depositing the differential amount of the fair rent fixed by the rent Controller in R. C. No. 361 of 1991 dated 28-12-1994 for the period from April, 1991 to December, 1996. Admittedly, the Rent appellate Court has not granted any stay on the operation of the order of the Rent controller. Only after dismissal of the appeal in R. A. No. 128 of 1995 on 8-11-1999 the tenants started depositing the said rent @ rs. 1,000/ -. Therefore, the relevant period to be considered as the period of wilful default is only from April, 1991 to 31-12-1996. As admittedly, the tenants have not deposited the rent @ Rs. 1,000/- but depositing only @ Rs. 105/- per month. When once fair rent has been fixed by the Rent Controller, that would be the rent due and payable by the tenants. Therefore rent means no doubt it is the agreed rent between the parties, but once the Court determines the fair rent that should only be treated as rent payable by the tenants. ( 7 ) UNDER Section 10 (2) (1) of the Act if the Rent Controller satisfies that the tenant has not paid or tendered the rent due by him in respect of a building within fifteen days after the date of expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable shall make an order directing the defendants to put the landlord in possession of the building. Therefore, the only question that requires to be considered is that whether the tenant failed to pay the rent or tendered the rent due and payable in respect of a building in question as stipulated under section 10 (2) (1) of the Act. No doubt, the rent fixed by the Rent Controller is subject to the appeal and revision and the fixation of the rent by the Appellate or revisional authority relates back to the order of the Rent Controller. No doubt, the rent fixed by the Rent Controller is subject to the appeal and revision and the fixation of the rent by the Appellate or revisional authority relates back to the order of the Rent Controller. Therefore, in the instant case the order of this Court in C. R. P. No. 5669 of 1999, dated 1-7-2002, relates back to the order of the Rent Controller, dated 28-12-1994, in directing the fair rent payable by the tenants from April, 1991. If the Appellate or Revisional Court either increases or decreases the rent on appeal or revision filed by either of the parties the same rent that has attained finality relates back to the order of the Rent Controller. Therefore, it cannot be said that the rent as finally confirmed by this Court is payable from the date of the order of this court as it has related back to the order of the Rent Controller. ( 8 ) AS contended by the learned counsel for the tenants that in view of section 15 of the Act, no doubt, the order of the Rent Controller passed under section 4 of the Act is not an executable order but for the purpose of considering section 10 (2) of the Act the rent as fixed by the Rent Controller has to be treated as the rent payable by the tenant. Therefore, though it is not an executable order, but for the purpose of determining the payment of tendering or paying rents, i. e. , the rent as fixed by the Rent Controller under Section 4 of the Act, has to be considered. Otherwise there cannot be two rents payable under Section 10 (2) (1) of the act. Rent as agreed between the parties or as fixed by the Rent Controller is only the rent due and payable under Section 10 (2) (1)of the Act. Therefore, I am of the opinion that the landlords rightly filed the eviction petition in 1997 even though the fixation of the rent has not attained finality by the appellate and the revisional Court for the wilful default of payment of rents from april, 1991 to December, 1996. Therefore, I am of the opinion that the landlords rightly filed the eviction petition in 1997 even though the fixation of the rent has not attained finality by the appellate and the revisional Court for the wilful default of payment of rents from april, 1991 to December, 1996. The judgment on which the learned Counsel appearing for the tenants has relied relates to a suit filed by the landlord for recovery of arrears of the rent in respect of a house let out to the tenant on the ground that the tenant has taken the house on a monthly rent of Rs. 30/- and the fair rent was fixed @ Rs. 20/- and after giving credit to the amounts paid, the suit was filed for recovery of differential amount of Rs. 504. 93/- and the suit was decreed. Against the said judgment revision was filed before this court. In that case the point that was considered is that determination of the fair rent by the appellate Court will date back to the date of the order of the Rent controller because the order of the Appellate authority is the order which the Rent controller ought to have passed. Having opined so, this Court also observed that the provisions of the Act contemplate the regular payment by the tenant of the agreed rent until the final fixation of the fair rent and if there is to be any default on his part, the tenant is liable for the consequence of non-payment. If the tenant chooses to send by money order such fair rent as may be fixed by a Tribunal which is subject to the appeal and has not become final, he takes the risk of such amount falling short of the fair rent which maybe ultimately fixed by the highest authority. It cannot be said that the landlord is disentitled to refuse the money order sent by him. Equally he also takes the risk of the fair rent ultimately fixed being less than the amount sent by money order. ( 9 ) HAVING regard to the facts and circumstances, I am of the opinion that even as per the aforesaid observation it is the duty of the tenant to pay the rent regularly. In the aforesaid case, the fair rent was fixed less than the rent that was being paid by the tenant. ( 9 ) HAVING regard to the facts and circumstances, I am of the opinion that even as per the aforesaid observation it is the duty of the tenant to pay the rent regularly. In the aforesaid case, the fair rent was fixed less than the rent that was being paid by the tenant. Here it is absolutely contra case where the fair rent has been fixed from Rs. 105/- to Rs. 1,000/ -. Therefore, i am of the opinion that the tenant has taken the risk of not depositing the differential amount as fixed by the Rent controller and therefore it cannot be said that there is no wilful default in not paying the rents for the aforesaid period as he has taken the risk of committing default. Therefore, I am of the opinion that both the courts below rightly held that there is a wilful default on the part of the tenant in not depositing the rent @ Rs. 1,000/- for the aforesaid period. Accordingly, I do not see any material irregularity, infirmity legal or otherwise in the impugned order. ( 10 ) ACCORDINGLY the civil revision petition is dismissed. However, having regard to the facts and circumstances the tenant is granted five months period for vacating and handing over the vacant possession subject to the condition that the tenant shall file an undertaking before the rent Controller by 15th of July, 2006 to the effect that he will continue to pay the rent and vacate and handover the vacant possession of the said premises to the landlords on or before 30-11-2006.