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2008 DIGILAW 921 (AP)

Mohd. Abdul Waheed v. NethakariPadma Bai

2008-10-25

VILAS V.AFZULPURKAR

body2008
COMMON ORDER :- This batch of revisions was listed on 22.10.2008,23.10.2008 and again today. On all the three days the learned Counsel for the petitioner was present, but there was no representation on behalf of the respondent. I have heard the learned Counsel for the petitioner on 22.10.2008 itself and the matters are appearing in the list for judgment. As there is no representation on behalf of the respondent, the revision petitions are being disposed of on the basis of the record and submissions of the learned Counsel for the petitioner. 2. The facts of CRP No.3940 of 2008 are taken for the purpose of disposing of all the revisions, as similar grounds were taken in all the cases and on similar findings the Courts below passed the orders impugned in the revision petitions. CRP No.3940 of 2008 : 3. The tenant is the petitioner. The respondent/landlady filed an eviction petition on the ground of wilful default alleging that the petitioner herein is her tenant and it appears that previously the rent was only Rs.250/- per month. The landlady has filed a fixation of rent petition which was allowed and the rent was enhanced to Rs.500/- per month payable with effect from the date of fixation of the rent petition (1.7.2000). During the pendency of the said fixation of rent petition, the petitioner was paying the rent at the agreed rate of Rs.250/- per month and by virtue of the finality which accrued to the order of the fixation of fair rent, the petitioner was liable to pay the rent at the revised rate from 1.7.2000. In the present case, the landlady alleged that the tenant has to pay the rent at the revised rate from March, 2000 to August, 2002 at the rate of Rs.500/- per month totalling to Rs.3,000/-. Similarly the differential rent between the admitted rent and the revised rent for the period from July, 2000 to February, 2002 is also due and payable and the same works out to Rs.5,000/-. Based on the ground that the aforesaid amount remains unpaid and the tenant had committed default, the eviction petition was filed on 24.9.2002. 4. Similarly the differential rent between the admitted rent and the revised rent for the period from July, 2000 to February, 2002 is also due and payable and the same works out to Rs.5,000/-. Based on the ground that the aforesaid amount remains unpaid and the tenant had committed default, the eviction petition was filed on 24.9.2002. 4. The petitioner/tenant resisted the said eviction petition by claiming that as soon as the rent was revised and he came to know that he has to pay the differential rent as well as he has continue to pay the revised rent, he approached the landlady seeking calculation of the differential rent payable and offered the arrears of rent which, according to him, is due, but the landlady refused. It is further claimed that thereafter the landlady gave him the notice dated 30.8.2002 which was received by the petitioner herein on 14.9.2002. Under the said notice the landlady had required the petitioner to pay all the arrears of rent within ten days. The petitioner claims that he has sent a reply to the said notice explaining the circumstances and offering the payment and that he then approached the landlady and paid the entire amount due on 23.9.2002 itself even before expiry of ten days stipulated under the notice. The petitioner claimed that, however, having received all the arrears of rent and having received the revised rent every month, the respondent/landlady filed the present eviction petition once again alleging the default for the period for which the petitioner has already paid. 5. The learned Rent Controller who tried the eviction petition, however, directed eviction holding that the petitioner is a wilful defaulter. Whereupon the petitioner filed an appeal before the lower appellate Court. Under the impugned order, the said appeal has been dismissed and questioning the same, the present revision petition is filed. 6. I have heard the learned Counsel for the petitioner and considered his submissions in the light of the evidence on record. The primary contention of the learned Counsel for the petitioner/tenant is that the landlady has received the entire amount of rent before initiation of the eviction proceedings and though the time gap between the date of receipt and date of filing of the eviction petition is of one day, the petitioner is protected from any claim as a wilful defaulter in view of the said payment. He further contends that the landlady has not been examined and there was neither any denial of the petitioner's case nor any evidence for the Court below to come to a conclusion that the amount was received by the landlady either under protest or without prejudice to her rights. He, therefore, contends that the present case of the petitioner is squarely covered by a reported decision of this Court reported in Mohan Lal v. Shajja Sultana, 2007 (6) ALD 497 , which has followed the decision of the Supreme Court in K.A. Ramesh v. Smt. Susheela Bai, AIR 1998 SC 1395 = 1998 (2) ALD (SCSN) 9. 7. The short submission of the learned Counsel for the petitioner is, to my mind, sufficient to decide the present revision petition without going into the other details. There is no factual controversy on the dates of payments and date of filing of the eviction petition as mentioned above and there is no doubt that the payment was made anterior to filing of the eviction petition by the landlady. Whatever may be the circumstances under which the landlady has received the payment made by the petitioner, but there is no rebuttal evidence on behalf of the landlady as she has not been examined. Though the burden is on the tenant to prove that he is not a wilful defaulter, but once the said burden is discharged by the tenant at least prima facie, the same shifts to the landlady and it is for her to explain the circumstances under which the said payment was received by her and to rebut the case of the tenant. In the present case, the landlady is not examined and there is no other rebuttal evidence on the part of the landlady. In Paragraph-9 of it's judgment the lower appellate Court proceeds to think that there should have been rejoinder for this by the tenant, which, in my opinion, does not arise in this matter, in view of the specific case of the tenant that as soon as he received the notice calling upon him to pay the rent within ten days, he had made the payment within ten days. Therefore, in view of the decision referred to above, the finding of wilful default reached against the petitioner is prima facie not sustainable. Therefore, in view of the decision referred to above, the finding of wilful default reached against the petitioner is prima facie not sustainable. The lower appellate Court has not examined the aforesaid legal position and on the erroneous impression, as recorded in Paragraph-15 of it's judgment that the payment was made after filing of the eviction petition, suffers from factual error in appreciating the dates of payment and date of filing of the eviction petition. From the record it is apparent that the payment was earlier and filing of the eviction petition was later. Further in Paragraph-16 of the impugned order the lower appellate Court proceeds to think that if the tenant had paid the arrears of rent within the stipulated period mentioned in the notice of the landlady, the initiation of the eviction proceedings against the tenant does not arise and further the appellate Court proceeds to think that the petitioner did not chose to pay the arrears of rent and paid the same subsequent to filing of the eviction petition. The aforesaid observation of the lower appellate Court also suffers from factual error in noting down the dates of payment and verifying whether the petitioner paid the amounts within the stipulated time of ten days or not. As mentioned above, the record of the case shows otherwise. But these factual aspects would be better appreciated by the appellate Court, than this Court, while exercising the revisonal jurisdiction. 8. In view of the above features of the impugned order, I deem it appropriate to set aside the impugned order and remit the appeal to the lower appellate Court for fresh consideration. Needless to say that the lower appellate Court shall be free to deal with the appeal afresh in accordance with law and uninfluenced by any observations made in the impugned order as well as in the present order and decide the appeal afresh. The revision petition is accordingly allowed. No order as to costs. CRP Nos.3938, 3939, 3941 and 3942 of 2006. 9. In view of my above findings, these revision petitions are also allowed in terms of the order passed in CRP No.3940 of 2008.