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Andhra High Court · body

2006 DIGILAW 825 (AP)

M. Nabeed Basha v. G. Md. Ismail

2006-07-13

V.ESWARAIAH

body2006
ORDER :-Civil Revision Petition No.4752 of 2002 is filed against the order and decree, dated 22-7-2002, passed in C.M.A. No.2 of 2002 by the Principal Senior Civil Judge, Kurnool, reversing the decree and order, dated 7-12-2001, in R.C.C. No.5 of 1999 on the file of Rent Controller, Kurnool and Civil Revision Petition No.4753 of 2002 is filed against the order and decree, dated 22-7-2002, passed in C.M.A. No.1 of2002 by the Principal Senior Civil Judge, Kurnool, reversing the decree and order, dated 7-12-2001, in R.C.C. No.4 of 1999 on the file of the Rent Controller, Kurnool. 2. Petitioners in both the petitions are the tenants in respect of the petition schedule property bearing Door No.18-90, Nehru Road, Kurnool and the respondent is the landlord. 3. There is no dispute with regard to the relationship that the petitioners are the tenants and the respondent is the landlord. The tenants filed R.C.C. No.4 of 1999 on 20-5-1999 on the file of the Rent Controller, Kurnool, under Section 8(5) of the A.P Buildings (Lease, Rent and Eviction) Control Act, 1960 (for brevity, the Act) seeking permission to deposit the rent for the month5 of February, March and April, 1999 and continue to deposit the future rents into the Court. The landlord filed RC.C. No.5 of 1999 on the file of the same Court under Section 10(2)(i) and 10(3)(c) of the Act seeking eviction of the tenant on the ground of wilful default in payment of the rent from December, 1998 onwards and on the ground that the said premises is bonafidely required for the personal use and occupation of the landlord. Counters have been filed and oral and documentary evidence has been adduced on either side. After considering the rival contentions the Rent Controller passed separate orders on the same day i.e., 7-12-2001 allowing RC.C. No.4 of 1999 filed by the tenant, permitting him to deposit the rent for the months of February, March and April, 1999 onwards into the Court, and dismissed RC.C.No.5 of 1999 holding that there was no wilful default in payment of rent for the months of December, 1998, January, February and March, 1999. As against the said order of the Rent Controller, the landlord filed C.M.A. Nos.1 of 2002 and 2 of 2002 before the Principal Senior Civil Judge-cum-Rent Control Appellate Authority, Kurnool and the Rent Control Appellate Authority allowed both the C.M.As. As against the said order of the Rent Controller, the landlord filed C.M.A. Nos.1 of 2002 and 2 of 2002 before the Principal Senior Civil Judge-cum-Rent Control Appellate Authority, Kurnool and the Rent Control Appellate Authority allowed both the C.M.As. vide a common order dated 22-7-2002 holding that there is wilful default in payment of rent from December, 1998 onwards and that the Rent Controller ought not to have allowed the application of the tenant permitting to deposit the rent into Court. Insofar as the bona fide requirement of the premises in question is concerned both the Courts held that the premises is not bona fidely required by the landlord and as against the said finding no revision has been filed and therefore the questions that arise for consideration in these two petitions are : 1. Whether there is any wilful default in payment of the rent from December, 1998 onwards till March, 1999 ? 2. Whether the order of the Rent Controller permitting the tenants to deposit the rent in R.C.C. No.4 of 1999 is legal and valid ? 4. It is not in dispute that the father of the tenant has taken the said premises )n lease and the rent payable in respect of :he said premises is Rs. 1,000/- per month. It is the case of the tenant that during the lifetime of his father, namely Chand Basha original tenant, the landlord used to come and collect the rent from the said Chand Basha and the said Chand Basha died on 16-9-1998 and after his death the tenant approached the landlord and paid the rent for September and October, 1998. It is stated that the tenant approached the landlord on 8-2-1999 and paid the rent for he month of January, 1999 and at that time he landlord demanded to increase the rent from Rs. 1,000/- to Rs.2,000/- and here fore, the tenant was not willing to increase the rent and sent the rent for the months of February and March, 1999 by Money Order on 10-4-1999 vide Ex.A.1, which -vas returned under EX.A.2 on 19-4-1999. Thereafter notice dated 26-4-1999 under Ex.A.3 was issued requesting the landlord to specify the bank into which the rent has o be deposited within ten days so as to enable the tenant to credit the rent into the bank. Thereafter notice dated 26-4-1999 under Ex.A.3 was issued requesting the landlord to specify the bank into which the rent has o be deposited within ten days so as to enable the tenant to credit the rent into the bank. It is stated that a reply was sent by he landlord under Ex.B.1, dated 18-5-1999, stating that no such Money Order was lent to him and therefore there was a wilful default on the part of the tenant in payment of rent from December, 1998 onwards and accordingly the tenant was requested to pay the rent from December, 1998 onwards. After receipt of EX.B.1 notice R.C.C.No.4 of 1999 was immediately filed on 20-5-1999. The Rent Controller held hat in the deposition of the landlord it was stated that payment of rent for November, 1998 was also not made but whereas in his application, seeking eviction, it was contended that there was wilful default· in payment of rent from December, 1998 only. Rent for February and March, 1999 was sent by Money Order and therefore there is no wilful default in payment of rent. Admittedly, no finding has been recorded with regard to the payment of rent for January, 1999. 5. Learned Counsel appearing for the petitioners/tenants submits that the rent for January, 1999 has been paid and there is no specific denial in the counter and therefore, the Rent Controller has not considered the issue whether there was default in payment of rent for the month of January, 1999 or not. Insofar as payment of rent for the month of December, 1998 is concerned in view of the contradicting version of the tenant the Rent Controller disbelieved the version of the landlord with regard to the non-payment of rent for the month of December, 1998. Insofar as the rent from February, 1999 onwards is concerned it is stated that there is no wilful default in payment of the rent. On the other hand the learned Counsel appearing for the landlord submits that no evidence has been adduced, either oral or documentary, with regard to the payment of rent from December, 1998 onwards. Admittedly, Money Order was sent on 10-4-1999 only for two months i.e., February and March, 1999. On the other hand the learned Counsel appearing for the landlord submits that no evidence has been adduced, either oral or documentary, with regard to the payment of rent from December, 1998 onwards. Admittedly, Money Order was sent on 10-4-1999 only for two months i.e., February and March, 1999. When the Money Order was not received it is the duty of the tenant to file an application seeking permission to deposit the rent immediately but there is no justification on the part of the tenant to wait upto 20th May, 1999 and file an application under Section 8(5) of the Act seeking permission to deposit the rent from February, 1999 onwards. 6. It is the case of the tenants that the original tenant died on 16-9-1998 and the landlord used to come to the shop of the tenant and collect the rent and the rents have been collected upto January, 1999 by the landlord in the shop of the tenant on 8-2-1999 and at that time the landlord demanded to enhance the rent from Rs. 1,000/to Rs.2,000/- but the tenant refused to pay the same and therefore the Money Order towards the rent of February and March, 1999 was sent on 10-4-1999 which was returned on 19-4-1999. The endorsement made by the tenant on the return acknowledgment goes to show that the landlord used to come and collect the rent and the rent for the month of January, 1999 was collected on 8-2-1999 and when the landlord demanded to enhance the rent from Rs.1,000/- to Rs.2,000/- the tenant refused to receive the same and since then the landlord did not turn upto collect the rent and therefore, the rent for two months was sent by Money Order followed by a notice, dated 26-4-1999, calling upon the landlord to specify the bank so as to enable the tenant to deposit the rent in the bank. The landlord sent a reply stating that the rent for the month of January, 1999 was not at all paid as alleged by the tenant and after the death of the said Chand Basha the tenant himself approached the landlord in the first week of October, 1998 and paid the rent for the month of September, 1998 and obtained the acknowledgment of payment in the notebook which was being maintained by his father and promised to pay the rent regularly. But thereafter he paid the rent for two months i.e., October and November, 1998 only and obtained the endorsement thereof and failed to pay the rent from December, 1998 onwards. The allegation that the rent for the month of December, 1998 is paid is denied. It is stated that the landlord is not aware of the Money Order said to have been sent by the tenant towards the rent for two months. Therefore, calling upon the tenant to pay the rent from December, 1998 onwards the landlord sent a reply notice dated 18-5-1999 and the landlord also issued notice dated 4-6-1999 stating that the tenant has failed to pay the rent from December, 1998 onwards. 7. Whatever practice that may be existing during the father of the tenant for collection of rent whether the landlord used to go to the shop of the tenant and collect the rent or whether the tenant used to go to the shop of the landlord and pay the rent may not be necessary in view of the admission made by the tenant that immediately after the death of his father he went to the landlord and paid the rent for the month of September, 1998 and thereafter rent for two months has been paid i.e., for October and November, 1998 and also agreed that he will continue to pay the rent. In view of the admission made by the tenant agreeing that he will continue to pay the rent as usual as has been paid for the months of September, October and November, 1998 the question that arise for consideration as to whether the tenant has offered or tendered the payment of rent from December, 1998 onwards. Though in his reply notice and the oral deposition it is stated that he has paid the rent for the month of December, 1998 and January, 1999 on 8-2-1999, but absolutely there is no documentary evidence in proof of payment of the said rent. Merely because there is some contradicting version of the landlord that the rent for the month of November, 1998 was not paid and at times it is stated that the rent for November, 1998 has been paid it cannot be said that the rent for the month of December, 1999 was paid. Merely because there is some contradicting version of the landlord that the rent for the month of November, 1998 was not paid and at times it is stated that the rent for November, 1998 has been paid it cannot be said that the rent for the month of December, 1999 was paid. However, non-payment of rent for the month of November, 1998 is not the issue in question seeking wilful default of payment of rent. It is the specific case of the landlord that the rent from December, 1998 onwards was not paid. As admitted by the tenant in his deposition that nobody was present at the time of the alleged payment of rent for the months of December, 1998 and the payment of rent for January, 1999. Absolutely there is no acceptable oral evidence on record to show that the landlord refused to receive the rent for the months of December, 1998 and January, 1999. Insofar as the payment of rent for the months of February and March, 1999 is concerned for the first time the rents have been sent by Money Order only on 10-4-1999. Rent for the month of February, 1999 is due and payable by the end of the month. Therefore it is the duty of the tenant to offer or tender the rent by the end of the month but there is no evidence on record that goes to show that the tenant offered or tendered the rent even for the months of February and March, 1999. Even with regard to the contention of the tenant that the rent for the months of February and March, 1999 has been sent by Money Order and that the landlord refused to receive the same there is no evidence on record that goes to show that the landlord refused to receive the same. As per the oral deposition of the postman it is stated that the postman continuously went to the place of the landlord for seven days and as the landlord was not available continuously for seven days the Money Order was returned back. No doubt it is also stated by the postman that it was informed to the family members of the landlord that the Money Order has come and the landlord can collect the same from the Post Office. No doubt it is also stated by the postman that it was informed to the family members of the landlord that the Money Order has come and the landlord can collect the same from the Post Office. If that be the evidence of the postman it is not known why it was endorsed on the Money Order that the landlord was continuously absent for seven days. Therefore it cannot be said that the landlord intentionally refused to receive the Money Order even for the months of February and March, 1999. For the aforesaid facts and circumstances 1 am of the opinion that there is a wilful default in payment of rent not only for the month of December, 1998 but also for the months of January, February, 1999 and March, 1999 as pleaded by the landlord. In view of the aforesaid facts and circumstances of the case I am of the opinion that the lower appellate Court rightly held that there is wilful default of payment of rent as alleged by the landlord. Point No.1 is accordingly answered. 8. Insofar as the Point No.2 is concerned, under Section 8 of the Act it is the duty of the tenant to pay the rent in advance and obtain receipt for the amount duly paid. If the landlord refuses or evades to receive the rent paid by the tenant, the tenant may issue a notice in writing requesting the landlord to specify the bank to deposit the same. For non-payment of the rent for the months of December, 1998 January, February and March, 1999 admittedly no notice has been sent except alleging that rent has been sent by Money Order for the months of February and March, 1999. There is no acceptable explanation or defence for not sending the rent for the months of December, 1998 and January, 1999. Merely because the landlord was absent for seven days it cannot be presumed that the landlord has refused to receive the Money Order. For the first time the notice was issued on 26-4-1999 and as also there was a default in payment of rent for four months, the landlord rightly refused to furnish the bank account in his reply dated 18-5-1999. For the first time the notice was issued on 26-4-1999 and as also there was a default in payment of rent for four months, the landlord rightly refused to furnish the bank account in his reply dated 18-5-1999. If the rent for the months of February and March, 1999 has been due it is the duty of the tenant to send the arrears of the rent again after deducting the money Order commission. There is no proper explanation on the part of the tenant as to why the rent pertaining to the months of February and March, 1999 was not sent again till the date of filing of the application, i.e., 20-5-1999, in R.C.C. No.4 of 1999. When the tenant has come up with the plea that there are no arrears of rent for the months of December, 1998 and January, 1999 and as there is no acceptable evidence in proof of payment of rents, I am of the opinion that there are no bona fides of on the part of the tenant in seeking to deposit the rent for the subsequent months of February, 1999 onwards when there was a default of payment of rent for the months of December, 1998 and January, 1999. Therefore, 1 am of the opinion that the lower appellate Court rightly held that the order of the Rent Controller is illegal and unsustainable. Accordingly the point No.2 is answered in favour of the landlord. 9. F or the aforesaid reasons both the civil revision petitions are dismissed. No order as to costs. However, the tenant is granted six months time from today to vacate and handover the vacant possession of the petition schedule property.