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Andhra High Court · body

2008 DIGILAW 953 (AP)

Venukonda Radha Krishna v. Pulivarthi Ramanaiah

2008-11-07

G.YETHIRAJULU

body2008
Judgment : This Civil Revision Petition has been preferred by the respondent-tenant in R.C.C. No.13 of 2005 on the file of the Rent Controller, Nellore. 2. Therespondent herein filed R.C.C. No.13 of 2005 for eviction of the tenant on the ground of default in payment of rent under Section 10(2)(i) and 12 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The revision petitioner opposed the application by contending that he did not commit any willful default in payment of the rent. The respondent herein examined PW-1 and marked Ex.A-1. The revision petitioner examined himself as R.W.1 and marked Exs.B-1 to B-7. After considering the oral and documentary evidence and submissions made by the Counsel, the Court came to a conclusion that there was willful default committed by the revision petitioner in payment of the rent, therefore the petition was allowed ordering eviction of the revision petitioner within three months from the date of the order. Being aggrieved by the same, the revision petitioner preferred C.M.A. No.15 of 2007 before the appellate authority, Nellore, and the appeal was dismissed by confirming the decree and order of the Rent Control Tribunal by directing him to vacate the property within two months from the date of the order. Being aggrieved by the same, the revision petitioner-tenant preferred the present revision contending that the Courts below failed to appreciate that he did not commit any willful default and that the rent was paid to the landlord from whom the respondent herein alleged to have purchased the property and on many other grounds. 1. 3. The learned counsel for the landlord submitted that he purchased the property through a registered sale deed on 30-08-2004, which was marked as Ex.A-1. Immediately, he informed the tenant that he purchased the property under Ex.A-1 and rents have to be paid to him by oral intimation, but since the revision petitioner failed to pay rents, he filed the case for eviction. 2. 4. The learned counsel for the revision petitioner-tenant submitted that the tenant has no knowledge about Ex.A-1 sale deed obtained by the landlord from the previous landlord. 2. 4. The learned counsel for the revision petitioner-tenant submitted that the tenant has no knowledge about Ex.A-1 sale deed obtained by the landlord from the previous landlord. There was no notice about the purchase of the property by the respondent; that there was no demand from the respondent to pay the rent to him; that the tenant used to pay the rent to the previous landlord as usual; that after coming to know about the purchase of the property by the respondent, an injunction suit O.S No.1771 of 2004 was filed by him against the respondent seeking permission to deposit the rent and that no orders were passed in that application, therefore, he could not deposit the rent for two months and as he was always ready and willing to pay the rent, no willful default has been committed by him, but, unfortunately, Courts below came to an erroneous conclusion that he committed willful default in payment of the rent. 5. Theaverments of the petition filed by the landlord are briefly as follows: The respondent (landlord) purchased the schedule property and other two shop rooms from one Gubba Sarojanamma and others on 30-08-2004. By the date of purchase the revision petitioner-tenant has been in occupation of the schedule property as a tenant on a monthly rent of Rs.800/-. The tenant used to pay the rent up to August, 2004 to the vendor of the respondent. The respondent and others informed the revision petitioner about the purchase of the petition schedule properties in the last week of August, 2004 and requested him to pay rents from September onwards to the respondent, but the revision petitioner failed to pay rents from September onwards. He committed willful default in payment of the rents to the respondent. The respondent is intending to establish a Super Bazar by demolishing the existing structure. The respondent filed a caveat O.P in the Court of the Junior Civil Judge, Nellore and subsequently the revision petitioner-tenant filed O.S. No.1771 of 2004 for perpetual injunction. He also filed I.A. No.2053 of 2004 for temporary injunction and obtained interim injunction and the respondent is contesting the suit. He, therefore, requested for ordering eviction of the revision petitioner. 3. 6. Therevision petitioner-tenant filed a counter with the following averments in brief: The schedule property originally belonged to one Chinni Narasamma, W/o Chinni Thimmaiah Chetty. He also filed I.A. No.2053 of 2004 for temporary injunction and obtained interim injunction and the respondent is contesting the suit. He, therefore, requested for ordering eviction of the revision petitioner. 3. 6. Therevision petitioner-tenant filed a counter with the following averments in brief: The schedule property originally belonged to one Chinni Narasamma, W/o Chinni Thimmaiah Chetty. She constructed the schedule mentioned shop rooms and let out to the revision petitioner for the purpose of running a hair cutting saloon in the year 1986 under lease agreement dated 22-01-1986. The revision petitioner is paying rents regularly under acknowledgment till December, 2004. The said Chinni Narasamma executed a registered settlement deed on 12-05-1981 in favour of Gubba Kondaiah. Since then, the revision petitioner has been paying rents to the agent of the said Kondaiah by name Gubba Bala Subrahmanyam. Gubba Kondaiah died intestate and his legal representatives became the owners of the disputed property. The respondent is no way concerned with the petition schedule property. When he interfered with the possession of the revision petitioner, the revision petitioner filed O.S. No.1771 of 2004 and obtained interim injunction. The respondent did not inform the revision petitioner about the purchase of the schedule shop along with other property from Gubba Sarojanamma and others on 13-08-2004. There was no demand from the respondent for payment of the rent. No notice was issued by the respondent to the revision petitioner at any time about the purchase of the petition schedule property. After filing of the suit and obtaining injunction orders, the respondent filed caveat and sent a copy of the same to the revision petitioner on 20-12-2004. After receipt of the caveat petition, the revision petitioner issued a legal notice on 31-12-2004 to the respondent and also to Gubba Bala Subrahmanyam to furnish the particulars of the person to whom the rent for the month of December, 2004 to be paid. The said notices were returned unserved. Immediately, the revision petitioner filed I.A.No.136 of 2005 with a prayer to permit him to deposit the rent into the Court and the said petition was pending enquiry. The said notices were returned unserved. Immediately, the revision petitioner filed I.A.No.136 of 2005 with a prayer to permit him to deposit the rent into the Court and the said petition was pending enquiry. The revision petitioner has not committed any willful default in payment of the rent and he is ready and willing to deposit the rents into the Court if the Principal Junior Civil Judge, Nellore, directs by allowing the petition in I.A. No.13 of 2005, therefore, he requested to dismiss the petition with exemplary costs. .7. In the light of the contentions raised by both parties, the point for consideration is: .Whether there is willful default in payment of the rent and whether the Revision Petitioner is liable to be evicted from the property? 2. 8. There is no dispute regarding the ownership of the property. The only contention of the landlord is that he purchased the property from his predecessor in August, 2004 and informed the tenant about the purchase of the property in the presence of Gubba Sankara Vara Prasad and B. Prabhakar Rao and requested the tenant to pay him the monthly rents from September, 2004 onwards. The lower Court as well as the Appellate Court came to a conclusion that the tenant failed to discharge the burden of establishing that he paid the rent and as he failed to pay the rent from December onwards despite knowing the fact that the present respondent purchased the property from the previous landlord, thereby he committed willful default in payment of the rent. It is an undisputed fact that the previous landlord did not inform the tenant in writing that he sold away the property to the present respondent. The present respondent neither gave notice to the tenant that he stepped into the shoes of the landlord through a registered sale deed nor demanded the tenant to pay the rent from the date of sale deed. Except the self-serving testimony, there is no other evidence that the respondent informed the tenant that he purchased the property and demanded him to pay the rent from the date of purchase. He did not examine the witnesses in whose presence he informed the tenant to corroborate his version. There is no evidence placed by the respondent that a copy of the sale deed was given to the tenant. He did not examine the witnesses in whose presence he informed the tenant to corroborate his version. There is no evidence placed by the respondent that a copy of the sale deed was given to the tenant. The tenant contended that he paid the rents from August to November to the previous landlord through entries in the account book maintained by him and they were also marked before the Rent Controller. When there is a specific plea from the tenant that he paid the rent through the entries made in the account book maintained by him, which were signed by the then landlord, the burden is on the landlord to disprove those entries either by examining the previous landlord to prove that he did not receive the rent or that the account book did not contain his signatures. No documents were marked by the landlord except saying that he orally informed the tenant that he purchased the property, which was not supported by any piece of evidence. When the tenant placed material that he paid the rent to the previous landlord, without the knowledge of the sale in favour of the respondent, the burden is on the respondent to prove that the tenant has knowledge about the purchase of the property and he willfully committed default in payment of the rent. The tenant in the cross-examination stated that he came to know through the caveat petition filed in December, 2004 that the respondent purchased the property under his lease. It was after filing of the suit for injunction by the tenant and obtaining an injunction from evicting. In the suit, there was no mention that the tenant has knowledge about the sale transaction. 3. 9. The Courts below, while observing that the tenant has knowledge about the purchase of the property in December, 2004, failed to pay the rents, therefore, it amounts to willful default. But as seen from the record, the tenant produced Exs.B-2 and B-3, rent notebooks, with acknowledgements of the then landlord about the receipt of rents from month to month. The tenant also issued a legal notice on 31-12-2004 that he came to know through the caveat that the respondent purchased the property, therefore, he requested to furnish the information as to whom he has to pay the rent from December, 2004, whether to the previous landlord or the respondent. The tenant also issued a legal notice on 31-12-2004 that he came to know through the caveat that the respondent purchased the property, therefore, he requested to furnish the information as to whom he has to pay the rent from December, 2004, whether to the previous landlord or the respondent. The notices were sent to the previous landlord as well as the respondent, but they were returned with an endorsement, therefore, he filed an Application before the Court on 20-01-2005 requesting the Court to permit him to deposit the rents into the Court from December, 2004 payable in the month of January, 2005 and onwards. The Application was pending before the Court and ultimately Court granted permission on 29-05-2005 to deposit the rents and accordingly, the tenant remitted the rents into the Court. The Appellate Court, without taking cognizance of the steps taken by the tenant in making effort to pay the rent to the correct landlord, observed that the tenant failed to pay rent till the date of disposal of the Appeal in 2008. But, the record placed before the lower Court clearly establishes that the tenant was not informed about the transfer of the property from the previous landlord to the respondent. No notices were exchanged and no witnesses were examined that there is oral information. The specific contention of the tenant is that he paid the rent due from August to November, 2004 to the previous landlord and obtained acknowledgements on the account book. The tenant contended that he came to know about the purchase of the property only through the caveat petition filed by the respondent in December, 2004. Immediately, he issued a legal notice to the previous landlord and the respondent to inform as to whom he has to pay the rent. When the notices were returned, immediately the tenant filed an Application before the Court requesting to permit him to pay the amount and on permission granted by the Court, he paid the rent. The Courts below observed that there was willful default in payment of rent. .10. When the notices were returned, immediately the tenant filed an Application before the Court requesting to permit him to pay the amount and on permission granted by the Court, he paid the rent. The Courts below observed that there was willful default in payment of rent. .10. In S. Sundaram V. V.R. Pattabhiraman AIR 1985 SC 582 , 'willful default' under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, was elaborated and observed that: ."A consensus of the meaning of the words 'willful default' appears to indicate that default in order to be willful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom." .11. In the present case, the tenant has taken every step to pay the rent at the earliest and his contention is that he paid the rent due upto November, 2004 to the previous landlord which was payable in December, 2004 and he immediately after receiving caveat petition, which disclosed that the respondent purchased the property, sent registered notices to the previous landlord and the respondent, but they were returned with some endorsement, therefore, he filed an Application to deposit the rents and when the Court granted permission, he deposited the rent. The sequence of .events indicate that there was no intentional, deliberate, calculated and conscious default in payment of the rent. On the other hand, there are laches on the part of the previous landlord and the respondent about the information of the sale transaction and that they demanded the rent to pay to a particular person. The Courts below, without considering all these aspects, came to a conclusion that the burden is on the tenant to prove that he has not committed willful default. But, under the Law of Evidence when once a particular party asserted that the other party committed willful default in payment of the rent, the burden is on him to prove that the tenant willfully failed to pay the rent. The Courts below wrongly kept the burden of proof on the tenant and held that he failed to prove that he did not commit willful default in payment of the rent. 4. 12. After going through the entire material available on record, I am convinced that the tenant did not commit any willful default in payment of the rent and he took all steps to show his sincerity to pay the rent. 4. 12. After going through the entire material available on record, I am convinced that the tenant did not commit any willful default in payment of the rent and he took all steps to show his sincerity to pay the rent. The Courts below did not properly appreciate the facts of law, therefore, the Judgments rendered by the Courts below are liable to be set aside. There is no willful default committed by the petitioner-tenant in payment of the rent and he is not liable to be evicted from the schedule premises. 5. 13. In the result, the Civil Revision Petition is allowed. The orders of the Courts below are set aside. C.M.A.No.15 of 2007 is allowed and consequently, R.C.C. is dismissed. No order as to costs.