Andhra HC (Pre-Telangana)
Ghouse Mohiuddin vs Dr. L. Bhaskar Reddy on 14 April, 1995
Equivalent citations: AIR1995AP238, 1995(2)ALT73, AIR 1995 ANDHRA PRADESH 238, (1995) 2 APLJ 145, (1995) 2 RENCJ 342, (1995) 2 ANDH LT 73, (1995) 2 LS 104, (1995) 2 RENCR 394
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER
1. This is a revision under Section 22 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'). Petitioner is the tenant. He has questioned the order of the Rent Control Appellate Authority (Chief Judge, City Small Causes Court, R.A. No. 174 of 1993) confirming the order passed in R.C. No. 345/89. By an order dated 29-2-1993 in R.C. 345/89, the learned Rent Controller closed the R.C. in view of the order passed on the same day in LA. 24/93 allowing the application of the landlord under Section 11(4) of the Act. The petitioner-tenant was directed, to vacate the premises within two months. '
2. The main Rent Control case -- R.C. 345/89 was filed for the eviction of the tenant on the ground of wilful default in payment of the rent and also on the ground that the premises was required for personal occupation of the landlord. Along with the main petition, the landlord also filed an application under Section 11 of the Act seeking an order directing the tenant to deposit the arrears of rent amounting to Rs. 35,000/-. In the mam R.C. as well as in the application filed under Section 11, it was alleged that the tenant failed to pay the rent from 1-9-1979 onwards, hence, the landlord issued a notice teminating the tenancy and filed a suit -- O.S. No. 1187/81 (on the file of the TI Addl. Judge, City Civil Court) for eviction and arrears of rent and damages, that an ex parte decree was granted, that on appeal, in CCCA No. 144/82, the High Court while confirming the decree as to payment of arrears of rent, set aside the decree with regard to eviction on the ground that the building was governed by the provisions of the Rent Control Act, that the tenant during the pendency of the appeal paid a sum of Rs. 24,000/- to satisfy the decree passed in O.S. 1187/81 and that after adjusting the said amount, still an amount of Rs. 35,000/- was due towards arrears of rent by the date of filing the petition. In reply of the application filed under Section 11, the petitioner stated that he ceased to be a tenant with effect from the date of agreement of sale dated 5-8-1979 entered into by his son with the landlord and that his son was put in possession of the premises pursuant to the said agreement of sale. He admitted that the suit filed by the petitioner's son for specific performance of the alleged agreement of sale was dismissed b'ut maintained that an appeal is pending in this Court. The Rent Controller inter alia relied upon the decree passed in O.S. No. 1187/ 81 and the judgment of this Court in CCA No. 114/82 confirming the decree partly with regard to the arrears of rent and also the judgment in O.S. 509/85 dismissing the suit filed by the petitioner's son for specific performance of sale and allowed the application, directing the tenant to deposit the arrears of rent amounting to Rs. 35,000/-within 15 days from the date of the order i.e., 12-4-1991, failing which, it was stated in the order that the order under Section 11(4) would follow. Against this order, an appeal --R.C.No. 121/91 was filed : The appeal was dimissed by the Rent Control Appellate Authority (Chief Judge, City Small Causes Court) by a judgment dated 1-8-1991. Pending the appeal, it appears there was an order suspending the operation of the order passed by the Rent Controller in I.A. No, 430/89. While dismissing the appeal, the learned Appellate Authority directed the petitioner (appellant therein) Co pay on or before 1-9-1991 the accumulated arrears of rent amounting to Rs. 47,500/-, failing which, it was directed that the Rent Controller shall pass orders under Section 11 (4). The petitioner did not deposit the arrears of rent by the stipur lated date. But he filed an application for stay on 27-8-1991 on the ground that he, intended to file a revision in the High, Court. The Appellate Court stayed its own order and extended the same from time to time up to 22-10-1991. By that date, the petitioner filed a revision in this Court under Section 22 of the Act. This Court by an orderdated 29-10-1991, suspended the judgment in R.A. 121/91 on condition of the petitioner furnishing bank guarantee for a sum of Rs. 50,000/- within, two weeks from the date of the order. The petitioner accordingly furnished bank guarantee and availed of the benefit of the stay order, pending the revision petition -- CRP No. 2987/91. The revision petition was dismissed on 23-12-1992. This Court held that the plea of agreement of sale was unbelievable, that such a plea was raised to avoid eviction, that the learned Rent controller was perfectly justified in coming to the conclusion that the relationship of landlord and tenant continued and that there was no bona fides in the claim set up by the petitioner-tenant. In paragraph 6 of the judgment it was observed as follows : "The petitioner furnished bank guarantee. The bank guarantee will not absolve the pertitioner from paying the arrears of rent. The C.R.P. is therefore dismissed. The Rent Controller shall pass appropriate orders on receipt of this order."
3. It may be noted that this Court while dismissing the C.R.P. did not grant/extent the time for deposit of the arrears of rent required to be deposited in the order of the Rent Controller. However, it appears that the petitioner deposited the amount on the same day on which the C.R.P. was disposed of.
4. The next and last stage in the proceedings which gives rise to this C.R.P. is the application filed by the respondent under Section 11(4). In the said application, the landlord contended that the petitioner deliberately omitted to pay the arrears of rent despite the orders of the Rent Controller and the Appellate Authority and in view of the findings given and the observations made in CRP No. 2987/91, the petitioner became liable for eviction under Section 11(4) of the Act.
5. In reply thereto, the petitioner contended that the failure to deposit the rent was not intentional but attributable to bona fide pursuit of legal remedies. It was also submitted that in view of the order of the Appellate Court staying the operation of its own order till 22-10-1991 and the order of suspension granted by the High Court on 29-10-1991, it cannot be said that there was any default on his part in paying the rent as per the order of the Appellate Court. According to the petitioner, still he had'nine days of time after the dismissal of the C.R.P. to deposit the rent and that by depositing the rent on the same day on which the C.R.P. was dismissed, he complied with the order of the Appellate authority.
6. The learned Rent Controller by an order dated 29-3-1993, allowed the application (LA. No. 24/93) filed by the landlord under Section 11(4). The Rent Controller rejected petitioner's argument more on the ground that he did not file any proof to the effect that the Appellate Court granted stay and in the absence of the stay order obtained from the High Court by 1-9-1991, the petitioner must be deemed to have committed default in complying with the order of the Appellate Court and therefore the consequences under Section 11(4) should follow. As already stated, as a sequel to the order passed on 29-3-1993, the Rent Controller closed the R.C. itself on the same day with a direction to vacate and hand over the premises to the landlord within two months. The appeal filed against R.C. 345 of 1989 was rejected holding that the tenant did not comply with the direction given by the Rent Controller as well as the Appellate Authority though it attained finality. Here, I may mention that the Appellate Authority's observation that there was no stay order in the C.R.P. is not a correct statement. The Appellate Authority also observed that the petitioner did not prefer any appeal against the order in I. A. 24/93 which, in my view, is not a material flaw that comes in the way of the petitioner. When the present revision was filed against the order in main R.C. which is solely and merely based on the order in LA. 24/93, there is no need to file revision against I.A. 24/93 also.
7. Notiwthstanding the fact that the Courts below have not squarely met the defence raised by the petitioner in the Section 11 (4) application and some of the reasons given are not sustainable, as the matter has been fully argued before me by both sides and the facts projected in support of the respective view-points are not in dispute, I shall proceed to deal with the merits of the contentions advanced in order to see whether Section 11 (4) of the Act is attracted in the instant case.
8. The learned Counsel for the petitioner has urged before me the same point that was urged in the counter filed in Section 11(4) application to drive home the point that there was no failure to pay or deposit the rent as per the orders passed in LA. No. 430/ 89 read with R.A. 121/91. It is the contention of the petitioner's Counsel that the Rent Controller's order passed in LA. 433/89 got merged into the order of the Appellate Authority in R.A. No. 121/91 and it is only the appellate order that shall be deemed to be operative and effective. If so, the petitioner did not exceed the time ,of 30 days granted by the Appellate Authority by its judgment dated 1-8-1991 while dismissing the appeal. Taking into account the period of stay granted by the appellate Court (upto 22-10-1991) and the period covered by the order of interim suspension granted by the High Court, the order in R.A. No. 121/91 must be deemed to be in a state of suspended animation and the direction therein to deposit the arrears of rent within 30 days from the date of the order revived itself after the dismissal of the C.R.P. i.e., 23-12-1992. On that date, it has to be seen whether 30 days had expired and in doing so, the period of stay and suspension has to be excluded. Viewed from this angle, the learned Counsel for the petitioner submits that the time limit set by the appellate Court has not been exceeded by the petitioner inasmuch as the petitioner deposited the rent without any further loss of times after the dismissal of the C.R.P.
9. It is difficult to accept the theory put forward by the learned Counsel for the petitioner. In my view, there is a fallacy in the argument partly based on an incorrect reading of the operative part of the order of the Appellate Authority in R.A. No. 121 of 1991. I am prepared to accept the contention of the learned Counsel that the appellate order is to be taken as the basis on the principle of merger. Even then, what follows? The Appellate Authority granted time up to 1-9-1991 for the deposit of arrears of rent. Between the date of judgment i.e., 1-8-1991 and the date stipulated for payment i.e., 1-9-1991, there is no doubt a gap of 30 days. It does not mean that the rent was required to be deposited within a period of 30 days. A particular date was given for payment and the date was 1-9-1991. Unless and until that date was extended by the Appellate Authority itself or by an order of the superior Court, one cannot go beyond 1-9-1991 to judge whether the rent was paid or not within the stipulated time. In the present case, there was no order extending the date of payment. The stay order granted by the same Appellate authority or the suspension granted by this Court does not leave the effect of permitting the payment beyond 1-9-1991. But the stay or suspension order would only rejieve the petitioner of the adverse consequences for the time being. It must be noted that the act of obtaining the stay either from the appellate Court or from the revisional Court is the voluntary act of the petitioner himself. Certainly it is not open to the petitioner to say that in view of the stay or suspension granted by the Appellate Court and the High Court, he was disabled from paying the rent. He cannot possibly invoke the principle expressed in the well-known maxim, 'ACTUS CURIAE NEMINEM GRAVABIT'.
10. Thus, while the petitioner derived a temporary advantage of not being thrown out of the premises for non-payment of rent, when once the revision petition was dismissed without granting any time for deposit of rent, the petitioner should bear the attendant consequences of not depositing the rent within the time prescribed by the Appellate Court i.e., on or before 1-9-1991. He chose the course, of seeking stay orders to postpone the effect of the order passed under Section 11(3) read with Section 11(1). Those interim orders which do not survive on the disposal of the main case, do not have the effect of altering the prescribed date laid down by the Appellate Court for the deposit of rent. The theory of exclusion of time covered by the stay orders is wholly out of place. Firstly, the Act does not provide for any such exclusion and secondly the stay or suspension not being one imposed on the petitioner against his will cannot be pressed into servive for the purpose of enlarging the time granted by the Appellate Court. If, while disposing of the revision this Court had granted further time specifically for the deposit of rent, the position would have been different. Far from giving any such specific direction, a reading of the concluding part of the judgment in CRP No. 2987/91 indicates that the request made by the petitioner to allow him to deposit the rent by a particular date did not find favour with the learned Judge who observed that mere furnishing of bank guarantee pending the C.R.P. will not absolve the petitioner's obligation in paying the arrears of rent. It is not without significance that the learned Judge directed the Rent Controller to pass "appropriate orders" in view of the dismissal of the C.R.P. which again implies and reinforces idea of rejection of the petitioner's Counsel's request to allow time for payment. In the absence of an order specifically extending the time for deposit of rent, the question whether the petitioner committed default in payment of deposit of the rent as directed by the Appellate Authority shall be judged on the very terms of the order passed, by the Appellate Authority. That order, as already noticed, gave time to the petitioner only up to 1-9-1991. The deposit of the amount more than two years later, after the dismissal of the C.R.P. cannot be regarded as compliance or even substantial compliance of the order passed under Section 11(3) read with Section 11(1). It therefore follows that the Rent Controller was justified in passing the order under Section 11(4) which stood confirmed by the judgment under revision.
11. That the order passed by the Rent Controller or the Appellate Authority under Section 11 directing deposit of the arrears of rent shall be construed strictly, is evident from the language of the provision and the underlying policy and purpose. Though the Act is primarily intended for the benefit of the tenants, the policy of- the enactment as discernible from Sections 10 and 11 is not to help the dishonest or defaulting tenants. Section 11 is a wholesome provision to ensure that the tenant pays the rent at least after the proceedings under the Act are initiated and in accordance with the determination made by the Rent Controller or the Appellate Authority. Sub-section (2) of the Section 11 enjoins that the deposit of rent shall be made within the time and in manner prescribed in the Rules. Sub-rule (6) of Rule 5 lays down that "a tenant against whom an application for eviction has been made before the Controller shall deposit all the arrears of rents due to him, if any, in respect of the building which such reasonable time, not exceeding 15 days, as may be specified by the Controller." In the present case, the Rent Controller on resolving the dispute raised by the tenant, passed the orderon 12-4-1991 grantign 15 days' time for deposit of the arrears of rent to the tune of Rs.35,000/-. On appeal, the Appellate Authority granted time up to 1-9-1991 for deposit of the arrears which accrued till then and if the amount was not paid, the tenant was warned that appropriate orders under Section 11(4) would be passed. As already noticed, the grant of stay by the Appellate Authority up to 22-10-1991 or the interim supsension granted pending revision at the instance of the petitioner himself does not amount to extension of time for payment. The stay or suspension order only places a temporary ban on the further proceedings to be taken under Section 11(4). When once the revision is dismissed without granting any further time for deposit of rent, it follows that the time limit set out by the appellate authority for the payment of arrears will have full effect.. If so, the question, to be asked and answered is whether the arrears of rent-were paid on or before 1-9-1991 or at.least by 22-10-1991? The answer is obviously in the negative. What follows, therefore, is, it must be deemed that the tenant failed to deposit or pay the rent 'as aforesaid' within the meaning of Section 11(4) and unless sufficient cause is shown by the tenant for the non-payment of rent in accordance with the Order passed by the appellate authority, further proceedings are liable to be stopped and an order of eviction should follow under Section 11(4). Whether or not there was sufficient cause will be discussed later, but it cannot be denied that there was failure on the part of the petitioner to pay the arrears of rent as per the order of the appellate authority.
12. That the orders passed by the Rent Controller under Section 11(3) shall be strictly construed and even an unexplained delay of two or three days in the deposit of rent as per the order of the Rent Controller would attracted Section 11(4) of the Act, is illustrated by a judgment of this Court in Laxminarayana Madanlal v. Jaiprakash (1986) 2 AP LJ (HC) 77. Ramanujulu Naidu, J.' after explaining that the expression "as aforesaid" occurring in Section 11(4) referred to determination of the amount of rent and the mode of payment of the same under Section 11(3), observed thus:
"Section 11 of the Act is specifically intended to relieve the landlord of further hardship he is likely to be put by compelling the tenant to fulfil his contractual obligations. It, therefore, follows that failure on the part of the tenant to pay or to deposit the rent determined by the Rent Controller under Section 11(3) of the Act or before the date specified by him empowers the Rent Controller to direct the tenant to put the landlord in possession."
The learned Judge then referred to the expression 'shall' employed in sub-section (4) of Secttion 11 and observed:
"In other words the sub-section imposes a mandate'on the Rent Controller to direct the tenant to put the landlord in possession of the building in case of failure to pay or to deposit the rent as determined under sub-section (3) of Section 11 of the Act. The mandate is however whittled down by reason of the expression "shall, unless the tenant shows suficient cause to the contrary" employed in the sub-section. In other words, where the tenant shows sufficient cause for failure to pay or to deposit the rent as determined in sub-section (3) of Section 11 of the Act, the penal consequence enacted in sub-section (4) does not follow. The burden is however on the defaulting tenant".
In that case, the Rent Controller directed the arrears of rent to be deposited on or before 18-8-1982. He further directed payment of rent for the subsequent period on or before 10th of every month. However, the. tenant paid the rent for the month of August on 13th Sept. and for the month of September on 12th October 1982. Thus, there was a delay of three days and two days respectively, in payment of rent for the months of August and Sept. 1982. The explanation offered by the petitioner for his failure to deposit the rent by 10th was disbelieved. It was held that sub-section (4) of Section 11 was squarely attracted though the delay was not much.
13. The next contention of the learned Counsel for the petitioner which is in the nature of an alternative submission is that having regard to the facts and circumstances, there was sufficient cause for not depositing the arrears of rent. The learned Counsel argued that the non-payment of rent within the time-limit prescribed by the Rent Controller or the appellate authority was on account of pendency of the proceedings in the appellate and revisional courts before whom he raised a bona fide dispute as to the basic issue regarding the existence of landlord and tenant relationship. It is submitted that immediately after the petitioner lost his case in the High Court, he deposited the rent without any loss of time which itself would indicate his bona fide and intention to pay the rent but for the pendency of the proceedings at various levels. After giving my anxious consideration, I am unable to uphold this contention.
14. The well-known expression 'sufficient cause' occurs in Section 5 of the Limitation Act as well. In other enactments too, it has been construed in the same light in which it has been understood in the context of Section 5 of Limitation Act.
15. The classic passage handed down by the Madras High Court a century ago in Krishna v. Chathappan (1890) ILR 13 Mad 269 has found its echo in almost all the decisions of the Supreme Court in interpreting the expression 'sufficient cause'. It was pointed out by the Madras High Court that the words "sufficient cause" should receive a liberal construction "so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."
16. The expression 'sufficient cause' occurring in Section 14(3) of the Himachal Pradesh Urban Rent Control Act came up for consideration before the Supreme. Court in Surinder Singh Sibia v. Vijay Kumar Sood, . The question there was whether vacation of premises in order to comply with an order of requisition passed by the competent authority amounts to vacation of premises without 'sufficient cause' within the mcanng of second proviso to Section 14(3). The Supreme Court held that vacating a building even under an incorrect order passed by a competent authority under a Requisition Act would be sufficient reason. While holding so, it was observed (Para 1):
"Sufficient cause is an expression which is found in various statutes. It has been construed liberally in keeping with its ordinary dictionary meaning as adequate or enough. That is, any justifiable reason resulting in vacation has to be understood as sufficient cause. For instance, economic difficulty or financial stringency or. family reasons may compel a landlord to let out a building in his occupation. So long it is found to be genuine and bona fide it would amount to vacating a building for sufficient cause.
XX XX XX XX XX If the vacation of the building was not a pretence or pretext, the proviso could not frustate the right of the landlord to approach the controller for necessary direction to tenant to handover possession to him."
It is in the light of the above exposition of the phrase 'sufficient cause', I should decide whether in the instant case the petitioner had 'sufficient cause' for not depositing the rent as per the orders of the appellate authority. In considering this question, it must be borne in mind that there is no specific provision to the effect that mere pursuit of legal remedies available to a tenant is itself a sufficient ground for deferring the payment of rent. In the absence of such specific provision, the utmost that could be said in favour of the petitioner is that recourse to legal proceedings to espouse a genuine cause backed up by a strong prima facie case may amount to sufficient cause in a given case. Or, where a complex and complicated legal question has to be decided on the plea of tenant, the tenant may be able to invoke the defence of 'sufficient cause'. However, it is not necessary to dilate on this aspect a further and express a definite view. On the facts of this case, there can be no doubt whatsoever that bona fides is wanting on the part of the petitioner and there is no justification at all for the petitioner to defer the deposit of rents for more than two years taking shelter under an utterly untenable plea of cessation of tenancy. The fact that the claim set up by the petitioner lacked bona fides is clearly found in the judgment of this Court in CRP No. 2987/91 which has become final. This Court further observed that "it is a clear case of default" and that mere filing of appeal does not absolve the petitioner of the liability to deposit the arrears of rent. The finding that the claim of the petitioner was not bona fide was not recorded 'sub silentio' or by way of passing observation but such finding was reached on consideration of the salient features of the defence set up by the petitioner that there was an agreement to sell on 6-8-1979 between the landlord and the petitioner's son as a result of which his son was put in possession of the building. The learned Judge took into account the fact that the petitioner did not give any reply to the notice dated 9-11-1979 issued by the landlord terminating the tenancy. That was the earliest point of time when the petitioner could have set up the plea of agreement of saie. Again when the suit notice was issued before filing O.S. No. 1185/81 the petitioner did not choose to give any reply. He,did not file the written statement in the suit .till June 1982 when the suit was decreed, though he took time on a number of occasions. These are the various relevant factors adverted to by the learned Judge for testing the genuineness of the petitioner's plea. The Court then observed :
"The sequence of events from 1979 indicate that the petitioner somehow wants to take pleas which are not tenable and continues to be in possession but does not like to pay rent."
It was further observed that the plea of petitioner was a "belated and motivated one and it has been invented with a view to see that he must squat on the property without any right. "These findings and observations found in a judgment, which has become final and which should be given full effect, demonstrate beyond a cavil of doubt, the want of bona fide on the part of the petitioner in pursuing the litigation tenaciously. It was not open to the Rent Controller and the appellate authority to go behind that judgment and to consider de novo whether the plea of the petitioner is bona fide inasmuch as that aspect stands concluded by the judgment of this Court in C.R.P. No. 2987/91 which, as already stated, has become final and therefore binds the parties. If we travel beyond this judgment and refer to the findings in the suit O.S. No. 509/85 filed by the petitioner's son against the respondent, they speak more eloquently about the falsity of the version set up by the petitioner and his son. Inter alia, it was found that the alleged sale agreement was not executed by the respondent at all. However, as an appeal against this judgment is pending, I do not want to rest my conclusion on this judgment. The findings in CRP No. 2987/91 are sufficient to lay bare the reprehensible conduct of the tenant in resisting the landlord's application on a false plea. As indicated by this Court in the aforementioned C.R.P., the lack of bona fides permeates the entire process of litigation pursued by the petitioner. Such lack of bona fides is certainly an antithesis to the concept of 'sufficient cause'. It does not in any way advance the cause of justice to come to the rescue of a party whose conduct in pursuing the litigation is far from the arena of bona fides. When once it is found that the plea set up by the tenant is not genuine and the conduct of the tenant in contesting the matter lacks bona fides, there is no scope'at ait to plead 'sufficient cause'. Viewed from this perspective and considering the indisputable facts of the case, it cannot be said that the petitioner has established sufficient cause for not depositing the rents within the time stipulated by the Appellate Authority.
17. I do not find any relevancy in the decision T. Ramakrishnaiah v. N. Seshadri, cited by the learned Counsel for the petitioner. That was a case in which the Rent Controller held in a proceeding under Section 11(4) that rent was paid or deposited up to date and therefore dismissed the appiication. In the course of hearing of appeal filed by the landlord, the tenant offered to deposit the rent up to end of August 1970 by 14-9-70. It was the contention of the landlord that every month's rent should be paid in advance as per the terms of the original lease arid therefore the offer made by the tenant did not relieve him of default. The Subordinate Judge having considered the question of law whether the stipulation in the expired lease that the rent should be paid on the 1st of every calendar month in advance should by implication govern the new lease which was created by holding over. He answered that question in the affirmative. In view of that finding, the Subordinate Judge straightway directed the tenant to put the landlord in possession of the building on the -ground that there was default in payment of rent by 1st September, 1970. That order was passed on 28-9-70. Ramachandra Raju, J. while agreeing with the conclusion of the learned Subordinate Judge on the question of law, held that the Subordinate Judge should not have straightway ordered eviction without granting some time for payment of the rent for the month of September 1970, The learned Judge held that it was not a case where there was no reason at all for the failure to deposit the rent due on 1st September 1970 in time as the tenant was contending that he was not bound to pay rent in advance as per the terms of the expired lease and invited the decision of the Court on that aspect. There was sufficient cause in not paying the rent by 1st September 1970. The facts of that case and the controversy involved therein do not bear any analogy to the present case.
18. In the result, all the contentions advanced on behalf of the petitioner fail and the C.R.P. is dismissed. I make no order as to costs. Considering the facts and circumstances of the case, I grant three months time to the petitioner for vacation of the premises subject to the payment of rents on the first of every month commencing from 1st May, 1995.
19. Petition dismissed.