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Andhra High Court · body

2011 DIGILAW 789 (AP)

Gisulal Gulabchand v. D. Harinarayana

2011-09-20

B.CHANDRA KUMAR

body2011
Judgment : Since the parties are same and the issues involved are also same in both these revisions, they are being disposed of by this common order. 2. C.R.P.No.6820 of 2005 is directed against the order dated 20.10.2005 passed in R.A.No.332 of 2001 by the Additional Chief Judge, City Small Causes Court, Hyderabad, (‘the lower appellate authority’, for brevity) whereby and whereunder, the order dated 23.07.2001 passed in R.C.No.176 of 1999 by the Principal Rent Controller, Secunderabad, (‘the Rent Controller’ for brevity) has been confirmed and C.R.P.No.6821 of 2005 is directed against the order dated 20.10.2005 passed in R.A.No.329 of 2001 by the lower appellate authority, whereby and whereunder, the order dated 23.07.2001 passed in R.C.No.216 of 1999 by the Rent Controller has been confirmed. 3. The petitioner in both these revisions is the tenant and the respondent in both these revisions is the landlord of the premises bearing municipal No.7-2-861, situated at Market Street, Hyderabad comprising of the ground and the first floor (schedule premises). For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Rent Controller in R.C.No.176 of 1999. 4. The petitioner/landlord filed a petition under Section 10(3)(iii)(a), 10(2)(i) and 10(2)(v) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (‘the Act’, for brevity) seeking eviction of the respondent/tenant from the schedule premises. 5. As seen from the record, the necessary facts of the case are as follows:- The father of the respondent obtained the schedule premises on lease in the year 1946 and started business in the name and style of “N.G.Dresses”. Initially, the monthly rent was Rs.175/-, but subsequently, the rent was enhanced from time to time. Respondent is the adopted son of the original tenant. Respondent had sent rent through money orders and banker cheques on various dates but the petitioner refused to receive the same on the ground that the rents were not sent in the name of the original tenant but were sent in the name of the respondent. Father of the respondent, i.e., the original tenant dies on 01.06.1998. After the death of his father, the respondent continued to sent money orders but the petitioner had refused to receive the same. Father of the respondent, i.e., the original tenant dies on 01.06.1998. After the death of his father, the respondent continued to sent money orders but the petitioner had refused to receive the same. The respondent initially got issued a legal notice on 22.01.1997 requesting the petitioner to furnish his bank account particulars to enable him to deposit the rents in the bank account of the petitioner, but the petitioner did not furnish such particulars. 6. The further case of the petitioner is that he has got two sons, namely Yogesh Kumar Yadav and Darmesh Kumar Yadav and that the petitioner and his sons have no other non-residential premises of their own except the schedule premises. It is also his case that his elder son – Yogesh Kumar Yadav is doing business in the name and style of Shanti Agencies in the premises No.3-3-69 situated behind erstwhile Prabhat Talkies, Kachiduga, Hyderabad from 1994 onwards in a rented premises on a monthly rent of Rs.6,000/- belonging to Mr.Pratap kumar and Smt.Sangeeta Shah and that the landlord of the said premises is pressing him to vacate the said premises. His further case that his eldest son is not making good profits and the rent is quite excessive. Thus, the petitioner’s case is that he bonafidely require the schedule premises for shifting the business of his son from the rented premises to the schedule premises who wants to start his own business along with his younger brother and that the schedule premises is quite sufficient and suitable for the said business. It is also his case that the respondent has recently secured alternative accommodation, i.e., Mulgi No.1-135 situated at Malkajgiri besides Anutex, Secunderabad and he is running a cloth matching centre under the name and style of ‘Arihant Textiles’ and since the respondent had secured alternative accommodation, he is liable to be evicted. 7. The respondent filed a counter denying the allegations of the petitioner. He has narrated the various dates on which he had sent the money orders, legal notices, banker’s cheques etc., to the petitioner. The respondent denied the contention of the petitioner that he requires the schedule premises bonafidely, i.e., for setting up of business by his eldest son. The respondent also denied the contention of the petitioner that he secured alternative building in Malkajgiri and running business under the name and style of ‘Arihant Textiles’. The respondent denied the contention of the petitioner that he requires the schedule premises bonafidely, i.e., for setting up of business by his eldest son. The respondent also denied the contention of the petitioner that he secured alternative building in Malkajgiri and running business under the name and style of ‘Arihant Textiles’. His further case is that his father took the schedule premises in the year 1946 and running the business under the name and style of ‘N.G.Dresses’ in it on a monthly rent of Rs.175/-and that the tenancy was oral. His further case is that his father had only one daughter who lives in Bangalore with her husband and that he is the adopted son of his father and that he was assisting his father in the business during his last stage of his life. His specific case is that by registered Will dated 29.05.1998, his father bequeathed his business in the name and style of ‘N.G.Dresses’ along with other properties to him and that since his father passed away and being the son of the original tenant, he is now the tenant of the schedule premises. The further case of the respondent is that the petitioner deliberately refused to receive the rent sent by him and again he had sent the rents through banker’s cheque along with legal notice requesting the petitioner to furnish his bank account details. It is his further case that due to ill health of his father, he sent the money orders towards rent and the legal notice in his name but the petitioner deliberately refused to receive the money orders sent in his name with oblique motive and hence, a legal notice was issued on his behalf to the petitioner on 18.11.1998 along with a bankers cheque for Rs.1,750/- towards rent requesting the petitioner to specify his bank account details, but the petitioner refused to receive the same and as such, the petitioner had knowledge about sending of legal notice and the money order towards rent and that vexed by the attitude of the petitioner, he filed R.C.No.216 of 1999 before the Rent Controller for depositing the rents and that the petitioner is habitual of filing successive rent control petitions. 8. Basing on the above pleadings, the Court below settled the following issues for trial:- 1. 8. Basing on the above pleadings, the Court below settled the following issues for trial:- 1. Whether the respondent has committed default in payment of rents for the period claimed in the petition, if so, whether the same is deliberate and willful? 2. Whether the first son of the petitioner bonafidely requires the petition schedule premises for his business? 3. Whether the respondent has secured alternative accommodation? 4. To what relief? 9. Evidence was let in. On behalf of the petitioner, the petitioner himself was examined as P.W.1 and his eldest son Yogesh Kumar was examined as P.W.2 and one Sangeetha Shah was examined as P.W.3 and Exs.P.1 to P.22 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and Exs.R.1 to R.20 were marked. 10. The Rent Controller, on appreciation of oral and documentary evidence available on record, came to the conclusion that the respondent deliberately committed default in payment of rents to the petitioner and that the requirement of the schedule premises by the petitioner for the sake of his elder son’s business is bonafide. However, the Rent Controller held that the petitioner failed to establish that the respondent has secured alternative accommodation. Holding so, the learned Rent Controller allowed the R.C. and directed the respondent to vacate the schedule premises within two months from the date of his judgment. Aggrieved by the same, the respondent preferred an appeal in R.A.No.332 of 2001 before the lower appellate authority and the lower appellate authority, on re-appreciation of the oral and documentary evidence, dismissed the appeal confirming the order of the Rent Controller. Challenging the same, both these revisions have been filed by the respondent/tenant. 11. Smt. Manjari S. Ganu, learned counsel appearing for the respondent submitted that the respondent had sent the rents in his own name under Ex.P.7, P.10 and P.12 and that those rents were accepted by the petitioner and that when the petitioner had accepted the rents sent by the respondent in his own name during the life time of his father, it is deemed that the petitioner had accepted the respondent as his tenant and, therefore, the petitioner is not justified in refusing to accept the rents subsequently tendered by the respondent. It is also her submission that even the petition averments make it clear that the respondent was sending the rents in advance through money orders and demand drafts and also sent notices to the petitioner on 18.12.1996, 26.12.1996, 25.01.1997 and on 17.06.1997 and that the petitioner had refused to accept those rents and when the petitioner refused to accept the rents sent through money orders, the respondent is not obliged to continue to send the rents. In support of this contention, she has relied upon the judgment in the case between Jamjetti Sathyanarayana Vs. M.Narsimloo 1985 (2) ALT 170. It is also her submission that Section 8(2) of the Act is not mandatory and that merely because the tenant did not follow the prescribed procedure of depositing the rents into the Court, it cannot be said that he has committed willful default. In support of her contention, she had relied upon the judgment in the cases between Nimmagadda Krishna Hari and another Vs. Manepalli Mangamma 2002 (1) ALD 512 (DB)and Mohd.Khaja Vs. Mohd. Shoukat Fahim Ahmed 2002 (1) ALD 797 (DB). 12. Per contra, Sri Nazir Ahmed Khan, learned counsel for the petitioner/landlord submitted that originally, the father of the respondent was running the business in the schedule premises and that he was also not regular in payment of rents and that subsequently, the respondent, during the life time of his father itself, started sending the rents in his own name and since the rents were not sent in the name of the original tenant, i.e., the father of the respondent, the petitioner rightly refused to receive the same and that the respondent continued to send the rents in his own name and subsequently, after the death of his father, the respondent committed willful default in payment of rents. It is also his submission that the learned Rent Controller, on appreciation of the evidence on record, categorically found that the respondent has committed willful default in payment of rents to the petitioner from November, 1998 to April, 1999 and that the evidence on record also proves the same and in view of the same, both the revisions are liable to be dismissed. In support of his contentions, learned counsel had relied upon the judgment of the Apex Court in the case between M.Bhaskar Vs. In support of his contentions, learned counsel had relied upon the judgment of the Apex Court in the case between M.Bhaskar Vs. J.Venkatarama Naidu (1996) 6 Supreme Court Cases 228and the judgment of a Full Bench of this Court in Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao and another 2001 (6) ALD 27 (FB) 13. In view of the above rival contentions, the points that arise for consideration in these revisions are (1) whether the respondent had committed willful default in payment of rents to the petitioner and whether not invoking of the statutory provision under Section 8(5) of the Act within reasonable time by the respondent amounts to willful default or not. 14. As far as the finding of the Court below that the respondent committed willful default in payment of rents from November, 1998 to April, 1999 is concerned, there is nothing on record to take a contra view. Once it is clear that the respondent failed to pay the rents to the petitioner for a considerable period of six months and the amounts were due on the date of filing of the eviction petition, it has to be held that the tenant committed willful default. It has to be seen that the respondent has already issued legal notices to the petitioner on 25.01.1997 and 18.11.1998. Thus, it is clear that the respondent intended to follow the procedure laid down under Section 8(5) of the Act. But he has not followed such procedure till filing of R.C.No.216 of 1999. 15. Section 8(5) of the Act is as follows:- “If the landlord refuses to receive the rent remitted by money order under sub-section (4), the tenant may deposit the rent before such authority and in such manner as maybe prescribed, and continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf.” 16. The Apex Court, in M.Bhaskar’s case (4 supra), observed as follows:- “If a tenant found that landlord was evading payment of rent by him, he should have followed the procedure prescribed by Section 8 of the Act to issue notice to landlord to name the bank and on landlord’s failure to name the bank, he should have filed application before Rent Controller for permission to deposit the rent and the tenant, not having followed that procedure, landlord entitled to eviction for willful default.” 17. The decision of the Full Bench of this Court in Vinukonda Venkata Ramana’s case (5 supra) is not applicable to the facts of this case, since it pertains to a situation wherein payment of due rent has been made before the institution of the suit and accepted by the landlord. 18. In Jamjetti Sathyanarayana’s case (1 supra), Nimmagadda Krishna Hari and another’s case (2 supra) and Mohd.Khaja’s case (3 supra), it was held that procedure prescribed under Section 8 of the Act is not mandatory in nature but only directory. However, we are bound by the judgment of the Apex Court in M.Bhaskar’s case (4 supra), which was not placed before this Court in the above referred decisions of our High Court. 19. It is not in dispute that the original tenant – Ghisulal Dafaria died on 02.06.1999. It has to be seen that from December, 1996 onwards, the petitioner seems to have refused to receive the rents. Admittedly, the rents for the months January, 1998 to April, 1998 were sent on 27.01.1998. Admittedly, the respondent got issued a legal notice on 08.03.1998 to the petitioner to specify the bank account, but the petitioner did not give the particulars of his bank account. He further admitted that he has to enquire whether the petitioner had received the original bank cheque sent on 18.11.1998. Thus, there is no proof of sending the alleged bankers cheque on 18.11.1998. Admittedly, till the petitioner filed the eviction petition on 07.05.1999 and the respondent did not approach the Rent Controller seeking permission to deposit the rents into the Court. Admittedly, the respondent filed R.C.No.216 of 1999 seeking permission to deposit the rents with the Rent Controller under Section 11 of the Act on 16.08.1999. Admittedly, till the petitioner filed the eviction petition on 07.05.1999 and the respondent did not approach the Rent Controller seeking permission to deposit the rents into the Court. Admittedly, the respondent filed R.C.No.216 of 1999 seeking permission to deposit the rents with the Rent Controller under Section 11 of the Act on 16.08.1999. When the petitioner was continuously refusing to receive the rents and when the respondent had already issued legal notices through his counsel to the petitioner, he ought to have followed the procedure prescribed under Section 8(5) of the Act as per the decision of the Apex Court in M.Bhaskar’s case (4 supra). Though it is not necessary for a tenant to continue to send money orders when landlord refuses to receive the same, but he must follow the procedure prescribed under Section 8(5) of the Act within reasonable time, i.e., one or two months. Each case has to be examined in its own facts. The Rent Controller should examine whether the delay in filing an application under Section 8(5) of the Act is reasonable or not. 20. In view of my finding that the petitioner herein willfully defaulted in payment of rents to the respondent herein, I am of the view that there is no need to discuss the other ground urged by the respondent herein, i.e., bonafide requirement. 21. In the light of the above, I do not see any valid ground to interfere with the reasoned judgments of both the Courts below. Both the revisions fail and are liable to be dismissed. 22.In the result, both the revisions are dismissed. The petitioner herein is directed to vacate and handover the vacant possession of the schedule premises to the respondent herein. However, having regard to the fact that the petitioner herein/tenant has been doing business in the schedule premises since the time of his grandfather, he is granted time till 31st March, 2012 to vacate and handover the vacant possession of the schedule premises to the respondent herein, subject to the payment of rents to the respondent herein. There shall be no order as to costs.