Andhra HC (Pre-Telangana)
Mohammed Gulam Mustafa vs Mohammed Abdul Jabbar on 10 November, 2005
Equivalent citations: 2006(1)ALT423
ORDER P.S. Narayana, J.
1. Background facts:
Mohd. Abdul Jabbar, hereinafter referred to as "landlord" is the petitioner in R.C. No. 497/94 on the file of IV Additional Rent Controller, Hyderabad. Mohd. Ghulam Mustafa, hereinafter referred to as "tenant" is the respondent in R.C.No. 497/94 on the file of IV Additional Rent Controller, Hyderabad. The learned Rent Controller on the strength of the evidence available on record recorded positive findings relating to wilful default for the period from September 1993 to August 1994, bona fide personal requirement of the landlord and also denial of title of the landlord by the tenant as mala fide and ordered eviction. The tenant preferred R.A.No. 94/2000 and the landlord preferred Cross-Objections relating to adverse finding numbered as R.A.No. 164/2000 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad and the Appellate Authority confirmed the findings relating to wilful default and mala fide denial of title but however reversed the finding recorded in relation to bona fide personal requirement. On behalf of landlord Exs,A-30 to A-35, certified copy of the execution of warrant, certified copy of panchanama, certified copy of delivery of possession, receipt, certified copy of undertaking and certified copy of list of articles were marked before the Appellate Authority and the Appellate Authority while confirming the order of eviction on two grounds reversed the same on one ground and aggrieved by the same, the tenant preferred C.R.P. No. 2144/2005 and the landlord preferred C.R.P. No. 3993/2005 being aggrieved b; the reversal of one of the grounds and also that part of the finding relating to wilful default. These Revisions are preferred both by the tenant and the landlord respectively under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act 1960, hereinafter in short referred to as "Act" for the purpose of convenience.
Pleadings in R.C.No. 497/94:
2. Pleading of the landlord: The landlord pleaded in R.C.No. 497/94 as hereunder:
Originally the suit mulgi was jointly purchased by the petitioner and his five brothers and subsequently it was released in favour of the petitioner in December 1988 and a release deed was executed on 30th March 1989. The respondent is the tenant in the suit mulgi from 5lh November 1978 and at present the rent is Rs. 660/- exclusive of electricity charges. Immediately after the release in December 1988 the petitioner as well as the brothers of the petitioner asked the respondent to pay the future rents to the petitioner and also to vacate the mulgi. The respondent is a chronic and wilful defaulter in payment of monthly rents and he deliberately and intentionally failed to pay the rents from January 1989 to August 1994 at the rate of Rs. 660/- per month. In spite of repeated demands, he became a wilful defaulter. The respondent in order to escape wilful default filed R.C.No. 220/89 on the file of I Additional Rent Controller, Hyderabad seeking permission to deposit the rents against the petitioner as well as the brothers of the petitioner. The respondent had also issued a legal notice dated 25-2-1989 to the petitioner as well as the other brothers of the petitioner and the petitioner also issued a reply to it and directing to pay rents to the petitioner from the month of January 1989 and the respondent failed to comply with the notice and filed the said petition for deposit of rents. The brothers of the petitioner also filed counter in R.C.No. 220/89 intimating that the suit property had been released in favour of the petitioner and demanded the respondent to pay the rents to the petitioner. After due enquiry R.C.No. 220/89 was dismissed on 14th September 1993 and after the dismissal the respondent failed to pay the rents to the petitioner. The petitioner carries on bangle business and he used to attend the exhibitions i.e., Urus and Jatras business in Hyderabad city and the family of the petitioner had grown up and the petitioner is facing great difficulties in securing the livelihood from the petty business of selling the bangles and thus the petitioner intends to carry on the business of bangles and imitation jewellery in the suit mulgies and the locality of Lad Bazar is well known for the business of the bangles and imitation jewellery and the petitioner demanded the respondent to vacate and handover the possession of the suit mulgi and the respondent in order to harass is bent upon to file the suit after the suit in one Court or the other and failed to vacate the suit mulgi. The personal requirement of the petitioner is bona fide, genuine and pressing and he is not having any other non-residential mulgi in the twin cities of Hyderabad and Secunderabad. Hence the petition for eviction.
3. Pleading of the tenant: The tenant resisted the eviction petition by filing a counter with the following submissions:
The petitioner is one of the owners of the non-residential premises i.e., the suit premises. The respondent denied that subsequently the suit premises was released in favour of the petitioner and neither the petitioner nor any of his five brothers had ever informed the respondent about the alleged relinquishment and the petitioner had failed to mention whether the said relinquishment was every registered and the ownership was ever transferred. The respondent/tenant admitted the monthly rent was enhanced to Rs. 660/- form 5-3-1985. The petitioner and his five brothers again demanded to enhance the monthly rent which was refused by the respondent and from then the petitioner and his five brothers are bent upon to harass the respondent. The petitioner and his five brothers again illegality tried to close the shutters of the respondent's rented mulgi and as such the respondent was forced to file O.S.No. 4086/86 on the file of the Assistant Judge, City Civil Court and the said suit was decreed with costs on 23-10-1991. The petitioner and his five brothers again illegally tried to close the common passage leading to the suit premises and the respondent again forced to file a suit O.S.No. 771/94 on the file of VII Assistant Judge and obtained temporary injunction orders restraining the petitioner and his brother from closing the common passage and the said suit is still pending. The petitioner nor his five brothers never informed the respondent about the alleged release nor they asked the respondent to vacate the suit premises. The respondent admitted that he has executed the rental agreement in favour of all the six owners and the rents were paid to the owners through the petitioner alone. The respondent was very prompt in payment of rents since 5th November 1978 and the petitioner and his brothers accepted the rents till December 1988 but the reafter they refused to receive the rents for the month of January 1989 and February 1989 though the money orders were sent for three times and the money orders were refused as the respondent refused to enhance the rents. The respondent is regularly depositing the rents in Court since 1-4-1989 to the credit of R.C. No. 220/89 and had also deposited the rents for the month of November and December 1994 on 2-11 -1994 and the respondent had no objection for the petitioner to receive the said deposited amount. The notice along with the Xerox copies of the bank challans were sent to the petitioner under certificate of posting. The respondent denied that he filed R.C.No. 220/89 to escape the ground of wilful default. He sent the rents for January 1989 and February 1989 for three times and they were refused without any reason. The money orders were sent in the name of the petitioner alone and there was no justification to refuse the same. The said R.C.No. 220/89 was dismissed on 14-9-1993 as the respondent had not complied with Section 8 of the Rent Control Act. The respondent came to know about the dismissal of R.C.No. 220/89 on 14-9-1993 and he applied for a certified copy of the said order on 22-9-1994 and the same was awarded on 1-10-1994 and till the receipt of the eviction petition along with the summons of the case, the respondent was not aware about the dismissal order. This fact was never intimated by the Counsel of the petitioner. The rents were deposited upto date to the credit of R.C.No. 220/89. The respondent cannot be deemed to be a defaulter. The respondent had bona fide deposited the rent in the Court as per the instructions of his Advocate and subsequently orders were passed in Section 11 petition in I.A.No. 888/94 in the present R.C. and the respondent under protest had made deposit of double payment in the Court to the credit of R.C.No. 497/94 and as such he had not committed any default. The respondent denied that the petitioner presently is carrying on the bangles business and he used to attend the exhibitions i.e., Urus, Jatras in various districts. It is stated that the petitioner is the owner of a big market known as Bilal market situate at Lad Bazar, Hyderabad and is having four big mulgies in the said market which are vacant and are available for the business of the petitioner and his family. The petitioner is running his business in his own mulgi No. 21-2-266 situate at Lad Bazar, Hyderabad under the name and style of M.A. Jabbar Bangles Stores and he is also having his phone No. 524960 in the said mulgi No. 21-2-266. The petitioner is having his own shop under the name and style of Meena Bangle Bazar at Lad Bazar, Hyderabad and the alleged personal requirement of the petitioner is not be relief and the respondent is an old tenant of the Bangles business and for these reasons the petition may be dismissed.
4. Points for consideration framed by the learned Rent Controller:
(1) Whether the respondent has committed wilful default from January 1989 to August 1994?
(2) Whether the petitioner is having personal requirement for the suit mulgi?
(3) Whether the respondent has denied the title of the petitioner and whether it is a bona fide denial?
5. Evidence available on record recorded by, the learned Rent Controller:
Oral evidence:
For petitioner: For respondent:
P.W.1 Mohd. Abdul Jabbar R.W.1 Mohd. Gulam Mustafa
P.W.2 Mohd. Abdul Rahman
Documentary evidence:
For petitioner/landlord:
Ex.A-1 Original release deed executed in favour of five brothers
Ex.A-2 Plans
Ex.A-3 Rental agreement
Ex.A-4 Translation
Ex.A-5 Office copy of the notice dated 9-3-1989 sent to Hamid Ali
Ex.A-6 Rough sketch
Ex.A-7 Certified copy of order in R.C.No. 220/89
Ex.A-8 Cheque petition returned by the Court in O.S.No. 77/94
Ex.A-9 Copy of Commissioner report
Ex.A-10 Certified copy of warrant
Ex.A-11 Certified copy of the order in C.M.A.No. 242/99
Ex.A-12 Certified copy of the decree
Ex.A-13 to
Ex.A-20 Letters from Telecommunication, Sales Tax, Income Tax
Ex.A-21 Money order commission
Ex.A-22 Money order receipt
Ex.A-23 A.P.S.E.B. Bill
Ex.A-24 Sales Tax assessment
Ex.A-25 Certified copy of the sale deed
Ex.A-26 Translation of Ex.A-25
Ex.A-27 Certified copy of Tax Assessment for mulgi No. 21-2-263
Ex.A-28
Ex.A-29 Certified copy of order in R.C.No. 701/92 on the file of
II Additional Rent Controller
Ex.C-1 Telephone Bill dated 1-1-1997
Ex.C-2 Sales Tax notice dated 14-9-1983
Ex.C-3 Sales Tax Department proceedings dated 14-9-1983
Ex.C-4 Income Tax notice dated 9-3-1988
Ex.C-5 Income Tax order for the year 1983-84
Ex.C-6 Income Tax order dated 8-3-1984
Ex.C-7 Assessment order of Income Tax dated 9-3-1988
Ex.C-8 Certified copy of plaint in O.S.No. 4086/86 on the file of
V Asst. Judge
Ex.C-9 Certified copy of plaint copy in O.S.No. 771/94 on the file
of VII Assistant Judge, City Civil Court, Hyderabad
Ex.C-10 Certified copy of written statement in O.S.No. 4086/86 on
the file of V Assistant Judge, City Civil Court, Hyderabad
For respondent/tenant:
Ex.B-1 Photo marked on 10-2-1998
Ex.B-2 Electoral roll marked on 16-12-1997
Ex.B-3 Photo
Ex.B-4 Certified copy of sale deed in favour of P.W.1 and his
brother from Ghousia Begum
Ex.B-5 Plan attached to Ex.B-4
Ex.B-6 Assessment
Ex.B-7 Rent receipt
Ex.B-8 to Money order acknowledgement by P.W.1
Ex.B-11
Ex.B-12 Certified copy of written statement in O.S.No. 4086/86
Ex.B-13 Visiting card
Ex. B-14 Copy of Ledger extract
Ex.B-15 Copy of order in R.C.No. 220/89
Ex.B-16 Certified copy of order in I.A.No. 888/94
Ex.B-17 Certified copy of order in R.A.No. 49/95 dated 2-2-1996
Ex.B-18 Certified copy of ledger extract
Ex.B-19 to Rent receipts
Ex.B-23
Ex.B-24 Translation Of Ex.B-22
Additional documents marked before the Appellate Authority:
Ex.A-30 Certified copy of execution warrant dated 25-2-2004
Ex.A-31 Certified copy of execution warrant dated 27-2-2004
Ex.A-32 Certified copy of panchanama
Ex.A-33 Certified copy of delivery of possession of receipt'
Ex.A-34 Certified copy of Undertaking
Ex.A-35 Certified copy of List of articles
Even on a cursory glance of the documents Exs.A-30 to A-35 which were marked before the Appellate Authority it is needless to say that these documents may not throw much light on the question in controversy.
Findings recorded by the learned Rent Controller:
6. While deciding Point No. 1, the learned Rent Controller recorded a finding that the tenant has not committed any wilful default from January 1989 till the disposal of R.C.No. 220/89. A further finding had been recorded that however the tenant has committed wilful default from September 1993 to August 1994. The findings relating to wilful default while answering Point No. 1 were recorded by the learned Rent Controller from paras 11 to 18. Point No. 2 was answered recording findings commencing from paras 19 to 26 and ultimately it was held that the landlord bona fide requires the premises in question. The learned Rent Controller further recorded findings at paras 27 to 34 while answering Point No. 3 and held that denial of title of the landlord by the tenant is not a bona fide denial but a clear mala fide denial and ultimately ordered eviction.
7. Points for consideration in the Appeal and Cross-Objections in R.A.No. 94/2000 and R.A.No. 164/2000:
(1) Whether the tenant committed default in payment of rent from January 1989 till the end of August 1994, if so, the default is wilful?
(2) Whether the requirement of schedule premises by the landlord is bona fide and genuine?
(3) Whether the denial of title of the landlord is bona fide, if not the tenant is liable to be evicted from the schedule premises?
Findings recorded by the Appellate Authority:
8. The Appellate Authority recorded findings while answering Point No. 1 commencing from paras 21 to 26 and confirmed the findings recorded by the learned Rent Controller relating to the ground of wilful default. Point No. 2 was answered commencing from paras 27 to 29 and ultimately arrived at a conclusion that the need of the landlord is not bona fide and genuine and held the Point in favour of the tenant and against the landlord. The learned Appellate Authority further discussed the ground of mala fide denial of title, Point No. 3, commencing from paras 30 to 32 and confirmed the finding recorded by the learned Rent Controller in this regard and ultimately dismissed both R.A.No. 94/2000 and R.A.No. 164/2000 confirming the order of eviction made by the learned Rent Controller.
Contentions of Sri Pratap Reddy. Counsel representing the tenant:
9. Sri Pratap Reddy, the learned Senior Counsel representing the tenant had taken this Court through the findings recorded by both the learned Rent Controller and the Appellate Authority and had pointed out that though for the subsequent period the nonpayment of rent may fall under default but definitely such default cannot be said to be wilful in the facts and circumstances of the case. The learned Senior Counsel made submissions in elaboration on the meaning of the word or expression "wilful". The learned Senior Counsel while further elaborating his submissions had drawn the attention of this Court to the meaning of "wilful" as specified in Stroud's Judicial Dictionary and also placed strong reliance on S. Sundaram v. V.R. Pattabhiraman , M.M. Rao v. G. Seshamma , Jamjetti Sathyanarayana v. M. Narsimloo 1985 (2) ALT 169 and Dakaya v. Anjan . The learned Senior Counsel also had pointed out that relating to the denial of title there is no plea at all and even in the absence of a plea especially in the light of the stand taken by the tenant the same cannot be said to be mala fide denial of title. The learned Senior Counsel also pointed out that in fact there was no partition at all between the co-owners or co-sharers of the property and all are the owners of the property and other mulgies are available and just for the purpose of throwing the tenant out this device was thought of by the brothers of the landlord. The learned Counsel also made certain submissions in elaboration that in the absence of a plea the evidence available, if any, may not be of any consequence.
Contentions of Sri Basith Ali Yavar. Counsel representing the landlord:
10. Sri Basith Ali Yavar representing the landlord had pointed out to the relevant findings which had been recorded by the Appellate Authority and would comment that concurrent findings recorded by both the Courts relating to wilful default cannot be disturbed. The learned Counsel also further pointed out that even the default committed prior to disposal of R.C.No. 220/89 may amount to wilful default and the finding recorded in this regard cannot be sustained. The learned Counsel also explained the conduct of the tenant in not following the procedure and would maintain that in view of the same the Courts below should have recorded a finding that for the whole period wilful default of payment of rents had been committed by the tenant. At any rate the learned Counsel would maintain that in view of the fact that concurrent findings had been recorded by the learned Rent Controller and also Appellate Authority the said findings need not be disturbed. The learned Counsel also while making further submissions relating to the mala fide denial of title had pointed out to the conduct of the tenant and the way in which the denial was made and in the light of the view expressed by the Apex Court in M. Subbarao v. P.V.K. Krishna Rao the learned Counsel would maintain that the findings recorded by the Appellate Authority are well justified findings which deserve no disturbance. Above all, the learned Counsel made elaborate submissions on the aspect of reversal of the finding relating to bona fide personal requirement and had pointed out to the evidence available on record and would comment that the finding recorded that the tenant (sic. landlord) continues to be a co-sharer of the other mulgies and some other mulgi had fallen vacant and hence the ground of bona fide personal requirement had not been established in the facts and circumstances of the case cannot be sustained. Hence the learned Counsel contended that the Civil Revision Petition filed by the tenant to be dismissed and the Civil Revision Petition filed by the landlord to be allowed ordering eviction even on the ground of bona fide personal requirement.
11. Both these Revisions filed under Section 22 of the Act can be disposed of by a Common Order in view of the fact that these Revisions are preferred as against the same order, the tenant aggrieved of the order of eviction being confirmed by the Appellate Authority and the landlord being aggrieved by a portion of the order relating to reversal of the ground of bona fide personal requirement and partly recording a negative finding relating to wilful default.
12. Ground of wilful default: The factual matrix well reflected from the respective pleadings of the parties and also the evidence which had been referred to supra need not be repeated again in elaboration. The main ground of attack of the tenant relating to the ground of wilful default is that in the facts and circumstances of the case concurrent findings recorded cannot be sustained. In Stroud's Judicial Dictionary the word or expression "wilful" is defined as hereunder:
(1) Wilful is a word of familiar use in every branch of law, and although in some branches of law it may have a special meaning, it generally, as used in Courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows that he is doing, and intends to do what he is doing, and is a free agent" (per Bowen, L.J., Re. Young and Hartson, 31 Ch.D.174; see further Elliott v. Turner 13 Sim.485).
(2) Does not necessarily connote blame, although the word is more commonly used of bad conduct than of good (Wheeler v. New Merton Board Mills [1933] 2 K.B. 669).
(3) If a man permits a thing to be done, it means that he gives permission for it to be done, and if a man gives permission for a thing to be done, he knows that is to be done or is being done, and, if he knows that , it follows that it is wilful" (per Lord Goddard, C.J. in Lomas v. Peck [1947] 2 AII.E.R. 574, 575).
(4) Wilful," like "negligence," is sometimes a relative term (Caldwell v. Canadian National Railways [1940] 3 W.W.R.247).
(5) Whatever is intentional is wilful (per Day, J., Gayford v. Chouler [1898] 1 Q.B. 316, cited Wilful and Malicious).
(6) Wilful," in Vagrancy Act, 1824 (5 Geo.4, C.83), S.3: See Lewisham Guardians v. Nice 93 L.J.K.B.469.
Strong reliance was placed on the decision referred (1) supra wherein the Apex Court at paras 21 to 25 observed:
Before, however, going into this question further, let us find out the real meaning and contend of the word 'wilful' or the words 'wilful default'. In the book 'A Dictionary of Law' by L.B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' - Deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' - Either a consciousness of, negligence or breach of duty, or a recklessness in the performance of a duty.
In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences 'hereof. In 'Words and Phrases', Volume 11A (Permanent Edition) at page 268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Volume 45 of 'Words & Phrases', the word 'wilful' has been very clearly defined thus;
'Wilful' - intentional; not incidental or involuntary:
done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
P-296 -"Wilful" refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
In Volume III of Webster's Third New International Dictionary at page 2617, the word 'wilful' has been defined thus: "governed by Will without yielding to reason, or without regard to reason; obstinately or perversely self-willed".
The word 'default' has been defined in Vol.1 of Webstors Third New International Dictionary at page 590 thus:
to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
In Black's Law Dictionary (4th edn.) at page 1773 the word 'wilful' has been defined thus:
Wilfulness" implies an act done intentionally and designedly; a conscious failure to observe care; Conscious; knowing; done with stubborn purpose, but not with malice.
The word "reckless" as applied to negligence, is the legal equivalent of "wilful" or "Wanton".
Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the act or by other Acts referred to above.
Further strong reliance was placed on a decision of the learned Judge of this Court on the decision referred (2) supra wherein the learned Judge observed:
It is clear that in the Rent Control Acts, the word wilful is not used in the narrow and primary sense when it occurs in the phrase 'wilful default'. The word default implies not doing something that is reasonable or necessary something required to be done. When it is coupled with the word 'wilful' the phrase is manifestly intended to signify something more than a mere omission or default. The expression "wilful default" has been the subject matter of several decisions in other branches of law. The Merchant Shipping Act in England has used the expression "wilful default of the person in charge". In cases arising under that Act, the view taken was that it refers to acts arising by the fault of such person, whether intentional or negligent. In the law relating to trustees, wilful default by a trustee is understood as "the wilfully not doing something which he ought to do as distinguished from doing something which he ought not to do". In Re Vickery, (1931) 1 Ch.572 the use of the words 'wilful default of a trustee' were held to imply such either a consciousness of negligence or breach of duty or recklessness in the performance of a duty. In another line of cases, where the question arose in respect of 'wilful default of the vendor' in conditions of sale, Courts had been called upon to construe the expression. In Re. Young and Harston, (1985) 31 Ch.D.168 at P.174 Bowen, L.J. understood it to mean as not doing what is reasonable under the circumstances with the knowledge that the omission will cause delay. In some other cases dealing with like situations the expression was assigned several distinct shades of meaning. It was understood as follows:
To make up one's mind not to verify a statement is 'wilful': but simply not to think about verifying it is not 'wilful'.
A mistake by; the vendor as to his right, if it be bona fide was held to be not wilful default.
From the examples cited above, it is clear that the emphasis is not on knowingly doing or abstaining from doing a thing, but rather on the unreasonable conduct or on a mental attitude which is not bona fide. It follows that the primary meaning of the word "wilful" as an act being spontaneous or arising out of free will has been supplanted in several branches of law. The use of the expression 'wilful default' in the Rent Control Act affords the clear intention of the legislature that it is not the mere omission to do a thing that is intended. The test, in my opinion, should be whether the person failing to pay the rent had reasonable ground for the belief that the omission to pay rent did not constitute default. It is useful to draw a line between two types or broad divisions. On the one hand may be cited cases where the omission to pay is shown to be negligent and is lacking in any reasonable excuse or bona fide belief. On the other side of the line may be placed cases where a reasonable ground for a bona fide belief that no default has occurred, has existed.
If one takes into account all the circumstances of the instant case, it is clear that the tenant was acting under the misapprehension that the liability in regard to the enhanced portion of rent had not become final and that the nonpayment of the enhanced portion of the rent did not constitute a default. It is true that this was based on a misapprehension of the legal position. It is also true that the ignorance of law is not excuse and cannot be urged as a ground for the condonation of an omission. But, the question now is whether the default can be described as a wilful default. I am of opinion that the circumstances of the case do not furnish a parallel to cases where the tenant acts with supine indifference to the obligations or is recklessly indifferent to them. The observations of Anantanarayana, Chief justice in Nagarathnam Pillai v. Mahadeviar (1969) 2 Mad. L.J. 492 tend to emphasize that in order to constitute wilful default, there must be a decree of culpability associated with the omission".
Further reliance was placed on the decision referred (3) supra to substantiate the contention that the non-observance of the procedure under Section 8 of the Act does not amount to wilful default. Reliance also was placed on the decision referred (4) supra wherein the Apex Court followed the decision referred (1) supra and held that where the tenant immediately on receipt of demand notice sent entire amount under default before filing of the suit there is no wilful default and eviction ordered causing serious prejudice to tenant carrying on business in the disputed premises such order of eviction was set aside.
13. The stand taken by the tenant is that he had been depositing monthly rents to the credit of R.C.No. 220/89 in the light of the interim order made by the learned Rent Controller in this regard. Further the stand taken by the tenant is that the disposal of R.C.No. 220/89 was not informed to him and hence the deposit was continued to be made due to ignorance. In view of the stand taken by the tenant, the default period was divided into two parts. One from January 1989 to August 1993 and another from September 1993 to August 1994. The fact that the tenant filed R.C.No. 220/89 under Section 8(5) of the Act to deposit rents is not in serious controversy. In view of Ex.A-8 it is clear that the landlord made an application for issuance of cheque for Rs. 36,960/- and part satisfaction memo also was filed in the year 1997. The R.C. was filed on 22-8-1994 and hence the withdrawal of the amount lying in the deposit to the credit of R.C.No. 220/89 was long after the filing of the R.C. The said R.C.No. 220/89 was dismissed by the learned Rent Controller under Ex.B-15 and the learned Rent Controller observed at pa.ra-6 as hereunder:
It is clear from the petition averments and the documents filed by the petitioner that, after issuance of notice dated 25-2-89 by the petitioner to the respondents, asking them to specify their bank accounts to deposit the rents, and when the respondents failed to furnish any such bank account the petitioner failed to remit the rent through M.O. to the respondents which is a mandatory provision as per Section8(4) of the Rent Control Act. There is no iota of evidence placed by the petitioner to prove that he remitted the rent to the respondents through M.O. after issuance of notice to the respondents/ landlords under Section 8(2) of Rent Control Act. Thus non-compliance of the mandatory provision of Section 8(4) of the Rent Control Act is fatal to the petition. The documents filed by the petitioner clearly shows that the petitioner remitted the rents through M.O. of January and February 1989 on 10-2-89 and 11-2-89 i.e., prior to his notice under Section 8(2) of the Rent Control Act. Thus it is clear from the own documentary evidence of the petitioner that he failed to follow the mandatory procedure laid down under Section 8(4) of the Rent Control Act.
In the light of Ex.B-15 subsequent to the dismissal on 14-9-1993, no proceeding at the instance of the tenant was pending and hence the question of further depositing rents by the tenant under the Rules would not arise. The Appellate Authority in the light of the decision in Srinivasa Metal Stores v. Ch. Jogeswararao came to the conclusion that in the light of the pendency of R.C. No. 220/89 the default from January 1989 to August 1993 cannot be held to the wilful default and accordingly confirmed the finding recorded by the learned Rent Controller in this regard. Further a finding had been recorded for the subsequent period. There was no permission given by the learned Rent Controller inasmuch as the interim order permitting to deposit rents came to an end by virtue of dismissal of R.C. and the evidence of P.W.1 and R.W.1 was appreciated in detail and the conduct of the tenant also had been taken into consideration and findings had been recorded that the tenant was negligent in not following the procedure and also in payment of rent to the landlord and hence the same would amount to wilful default. There cannot be any doubt or controversy that mere default always may not wilful but however in the light of the conduct of the tenant the periods had been classified into two and concurrent findings had been recorded by both the learned Rent Controller and the Appellate Authority relating to this aspect and hence the said concurrent findings relating to the later period of default need not be disturbed by this Revisional Court.
14. Ground of mala fide denial of title:
It is no doubt true that there is no specific plea relating to the mala fide denial of title. The learned Senior Counsel placed strong reliance on Abubakar Addul Inamdar v. Harun Abdul Inamdar and would contend that when the plea was not specifically raised in the pleading, no amount of proof can substitute the pleading. In Majati Subbarao v. P.V.K. Krishna Rao (Deceased) by Legal Representatives the Apex Court held:
A denial of title in the course of eviction petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction denial must be anterior to the filing of the eviction petition, it cannot be said that denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in subsequent suit to be filed by the landlord.
A clear finding had been recorded that in the counter at para 1(b) the tenant specifically denied the alleged relinquishment of the respective shares of the five brothers in favour of the landlord and had taken a specific stand that it is a false document. Further P.W.1 deposed that he got issued a notice under Ex.A-5 intimating about the ownership of the premises with a request to pay rents to him and vacate the premises. In R.C.No. 220/89 separate counters were filed and this aspect that the present landlord alone is the landlord had been specifically mentioned. Apart from this aspect of the matter, Ex.A-8 cheque petition also was filed by the landlord and the amount was withdrawn. Further, the evidence of R.W.1 also would clearly go to show that he is bent upon in denying the title of the landlord. R.W.1 specifically deposed that it is not true to suggest that in March 1989 the brothers of the petitioners have relinquished their shares in the suit mulgi in favour of the petitioner. R.W.1 also deposed that it is not true to suggest that from March 1989 the petitioner became the absolute owner and landlord of the suit mulgies. R.W.1 also deposed that it is not true to suggest that with an intention to harass the petitioner he is denying the title of the landlord. Thus from the evidence available on record and also in the light of the conduct of the tenant it is clear that despite the knowledge that the landlord is the landlord the same had been denied by the tenant. Apart from the evidence of P.W.1, the evidence of P.W.2 also had been appreciated and positive findings had been recorded by both the learned Rent Controller and the Appellate Authority and hence the said findings need not be disturbed by this Revisional Court.
15. Ground of bona fide personal requirement: Aggrieved by the reversal order made by the Appellate Authority, the landlord filed C.R.P.No. 3993/2005 attacking the adverse findings. The learned Appellate Authority recorded findings in relation thereto commencing from paras 27 to 29. The learned Appellate Authority observed as hereunder: "In a decision (Super Forgings & Steels (Sales) Pvt. Ltd. v. Thyabally Rasuljee (dead) through L.Rs. ) the Apex Court held and explained the expression "which is his own" and their Lordship Justice held that expression includes co-ownership. In the decision of the Supreme Court the Apex Court held that:
Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants... We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.
In view of the proposition laid down in the above decision a co-owner is equivalent to sole owner of the property. If that principle is applied to the present facts of the case when an adjacent mulgi is left vacant and readily available for occupation as admitted by P. W.2 brother of P. W.1 and the landlord is also one of the co-owners of the adjacent mulgi, the vacant possession of the mulgi by all the co-owners is deemed to be the possession of mulgi by the present landlord also. In order to seek eviction of a tenant from non-residential premises under Section 10(3)(iii) it is the duty of the landlord to prove that he is not in possessing any other non-residential premises in the twin cities. But in the instant case, the landlord is in possession of adjacent mulgi as a co-owner and thereby be is disentitled to seek eviction of the tenant from the schedule premises. On this ground alone the landlord's requirement of the schedule premises can be negatived. Hence, I find that the requirement of schedule premises by the landlord is not bona fide but the Rent Controller committed an error in ordering eviction on the ground of bona fide requirement and it is erroneous on the face of it in view of the principle laid down by the Apex Court in the above decision. Consequently the finding of the learned Rent Controller is hereby set aside".
The learned Counsel representing the landlord placed reliance on the under noted decisions:
G. Kaushalya Devi v. Ghanshyamdas , Kanda Lingaiah v. P. Nirmala Devi 2002 (2) An.W.R. 722 (A.P.) : 2002 (6) ALD 590, Dattatraya Laxman Kamble v. Abdul Rasul Moulaali Kotekunde and Anr. , Ramkubai v. Hajarimal Dhokalchand Chandak and Ors. , Pallicherla Suseelamma and Ors. v. Kondapalli Sarojanamma , Savani Transport Pvt. Ltd. v. Datti Venkateswara Rao , Prativa Devi v. T.V. Krishnan , Raghavendra Kumar v. Firm Prem Machinery & Co. , V. Radhakrishnan v. S.N. Loganatha Mudaliar and Yudhishter v. Ashok Kumar .
There cannot be any quarrel relating to the propositions which had been laid down in the decisions referred to supra. The evidence of P.W.1 and P.W.2 had been appreciated in detail and the admission made by P.W.2 that out of three mulgies one mulgi is kept vacant till this day also had been taken note of and in the light of the evidence of P.W.1 and P.W.2 the learned Appellate Authority recorded a finding that the requirement of the landlord is neither bona fide nor genuine. In the light of the reasons recorded in detail by the learned Appellate Authority, this Court is of the considered opinion that the said reasoning can neither be said to be perverse nor can be said to be based on no evidence. Hence, the landlord cannot succeed on the ground of bona fide personal requirement and accordingly the findings recorded by the Appellate Authority reversing the findings of the learned Rent Controller in this regard are hereby confirmed.
16. Result: In the light of the findings recorded supra, both the Civil Revision Petitions filed by the tenant and the landlord are bound to fail and accordingly the said Civil Revision Petitions are hereby dismissed,
17. Time granted to the tenant to vacate the premises: In the facts and circumstances of the case the tenant is hereby granted three months time to vacate the premises.
18. Costs: In view of the facts and circumstances, the landlord is entitled to costs in the Revision filed by the tenant. But, however, the tenant is not entitled to costs in the Revision filed by the landlord.