Andhra HC (Pre-Telangana)
M/S. Degala Veerabhadra Rao vs Varanasi Laxminarayana on 21 November, 2012
Author: G.Krishna Mohan Reddy
Bench: G.Krishna Mohan Reddy
HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.R.P.No.5708 of 2012 21-11-2012 M/s. Degala Veerabhadra Rao Varanasi Laxminarayana Counsel for the Petitioner: Sri E.V.V.S. Ravi Kumar Counsel for Respondent: Sri S. Sridhar <Gist: >Head Note: ?Cases referred: 1. 2004(3) ALT 1 SC 2. 2008(4) ALT 147 (FB) 3. 2002 (1) ALD 512 (DB) 4. 1985(2) ALT 169 5. 1976 ALT 42 6. 1997(2) ALD 184 = 1997 (1) ALT 797 7. 1998(1) ALD 145 ORDER:
This Civil Revision Petition is filed under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act') aggrieved by order dated 18-09-2012 passed in R.C.A.No.1 of 2012 on the file of the Court of Principal Senior Civil Judge, Kakinada (RCA) confirming order dated 15-12-2011 passed in R.C.C.No.25 of 2009 on the file of the Court of Rent Controller-cum- Principal Junior Civil Judge, Kakinada (RCC).
2. The petitioner herein is the appellant in the RCA and respondent in the RCC whereas the respondent herein is also the respondent in the RCA and petitioner in the RCC. For convenience sake, I refer the parties as arrayed in the RCC.
3. It is necessary note briefly the respective pleadings for proper appreciation of the petition, they are as follows:
The petitioner is the owner of the petition schedule property i.e., one R.C.C. roof building along with a shop. His mother and widowed sister are residing in that building.
The respondent firm has taken the shop located in that building on lease for carrying out their cement business and to use the shop as godown on paying rent of Rs.500/- per month.
The respondent filed R.C.C.No.28 of 1995 on the file of the Court of Rent Controller-cum-Principal Junior Civil Judge, Kakinada under Section 8 of the Act seeking permission to deposit the monthly rents into the Court which was allowed following which the respondent started depositing the monthly rent of Rs.500/- into the Court. However the respondent firm did not give any notice with regards to the deposit of rents either to the petitioner or to his counsel whereby he violated the procedure prescribed under Rule 5 of the A.P. Buildings (Lease, Rent & Eviction) Control Rules (for short 'the Rules'). Apart from that the respondent did not maintain the building properly. He dumped cement bags indiscriminately in the building which resulted in damage and development of cracks in the walls and collapse of the northern wall of the building in consequence of which several plants were grown in those cracks whereby the building is in dilapidated condition requiring extensive repairs. Thirdly the building in their occupation at present is not sufficient for their living. His widowed sister who is living along with his mother has no source of income by reason of which she wants to start a kirana shop in the schedule property after making necessary repairs therein having no other non-residential property at Kinada. Thereby in that way he requires the schedule property for his personal occupation. Hence, he filed the petition seeking the eviction of the respondent from the schedule property on those grounds.
4. The respondent filed counter specifically denying the allegations made in the petition. It is stated in the counter that in fact the petitioner refused to receive the rents sent by him by reason of which they filed R.C.C.No.28 of 1995 which was allowed following which they are depositing the rents into the Court regularly. It is further stated that the property was leased out to him as a godown to keep cement bags. It is alleged that the petitioner never effected any repairs to the schedule property whereas whenever he wanted to do so the petitioner highhandedly objected replying that it could not effect the repairs. However he claims that the walls of the buildings are not damaged. According to him further the petitioner does not require the petition schedule property on any of the grounds pleaded.
5. The Court below after hearing the parties allowed the RCC upholding the claim of the petitioner observing as follows:
1. The evidence recorded make it very clear that though the respondent deposited the corresponding rents into the Court properly, it failed to give any notice to the petitioner as enshrined under Rule 5 of the Rules which would amount to willful default.
2. The sister of the petitioner, who is depending upon the petitioner, had no occupation or source of income and she wanted to start kirana shop in the premises after making certain repairs to the same.
3. When the cracks developed in the premises, necessary information was not given by the respondent to the petitioner to effect necessary repairs.
6. Aggrieved thereby, the respondent filed the RCA which was dismissed by the impugned order aggrieved by which the present CRP is filed.
7. Section 10 of the Act deals with the subject of 'Eviction of tenants'. Various avenues are made thereunder with regards to the eviction of tenants from the premises covered by the Act. It is not necessary to go through or consider all the provisions enumerated in the section as a whole. It is suffice to consider what is relevant here. By virtue of clause 2(i) thereunder a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable or that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application. Clause 3(a)
(i)(b) thereunder contemplates that a landlord may subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead, for his own occupation.
8. Learned counsel for the respondent has contended that the question of non- giving of notice to the petitioner about the deposit of rents into the Court may be taken seriously provided the petitioner was not aware of the deposit of the rents and consequently he could not collect the rents from the Court. In support of his contention he has relied upon the decision reported in N.D. THADANI v. ARNAVAZ RUSTOM PRINTER 1. Further he claims that the sister of the petitioner got no experience in doing any business but the petitioner set up the plea of personal requirement as a ruse to vacate the respondent from the property. Further the petitioner as he used to see the outside portion of the building regularly being the resident of the same building got knowledge of the outside portion only and he got no knowledge about the condition of the premises inside. Further the Court below failed to appreciate the evidence adduced properly and passed incorrect order by reason of which the same order is liable to be set aside.
9. Therefore, it is to be seen as to whether the order passed by the Court below is tenable or not?
Point No.1:
10. The ambit of Section 8 and Rule 5 which deal with the subject on hand is to be examined in the present context. Section 8 of the Act reads as follows:
"Right of tenant paying rent or advance to receipt.-
(1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent.
(2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord :-
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within three miles of the limits thereof.
Explanation :- It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section. (3) If the landlord specifies a bank aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in at any rent which may subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of sub-section (2).
(5) 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 may be 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.
Rule 5 of the Rules reads as follows:
"(1) A tenant desirous of depositing the rent under sub-section (5) of Section 8 or Section 9 or Section 11 shall deposit the same, if the building concerned is in the City of Hyderabad, in the State Bank of Hyderabad, and if the building is elsewhere, in the Controller's Office or in the nearest Treasury, whichever is convenient, after obtaining permission for the deposit of the rent from the Controller.
(2) The challan accompanying the deposit of the rent shall be in the Andhra Pradesh Treasury Code, Form No.10 in triplicate and shall specify
(a) the name and address of the tenant by whom or on whose behalf the rent is deposited;
(b) the name and address of the landlord entitled to receive the rent deposited;
(c) the rent at which and the period for which the rent is deposited;
(d) the description of the building in respect of which the rent is deposited;
(e) the provision of the Act including the circumstances under which the rent is deposited; and
(f) the head of account to which the rent is credited, namely "P.II Deposits and Advances - (Deposit and bearing interest) - C. Other Deposit Accounts - Civil Deposits - Personal Deposits - Personal Ledger Account of the Controller or appellate authority, as the case may be."
(3) One copy of the challan for the deposit of rent returned by the State Bank of Hyderabad, Controller's Office or Treasury, as the case may be, after endorsing thereon the receipt of the amount deposited, shall be delivered in the office of the Controller or the appellate authority, as the case may be. (4) On delivering one copy of the challan, the Controller or the appellate authority, as the case may be, shall acknowledge its receipt on the back of the challan retained by the tenant and take necessary action for the service of the notice of deposit on the person or persons concerned within seven days of the delivery thereof. The notice of deposit shall be served on the person or persons concerned in one or other of the modes specified in Rule 16. (5) Every Controller and every appellate authority shall cause proper accounts to be maintained in their office for the rents deposited under sub-section (5) of Section 8 or Section 9 or Section 11.
(6) A tenant against whom an application for eviction has been made before the Controller shall deposit all the arrears of rent due by him, if any, in respect of the building within such reasonable time, not exceeding 15 days, as may be specific by the Controller."
These provisions clearly set up a mode or modes of payment of rents to landlord. It is not contemplated in these provisions about the deposit of corresponding rents before the Court as necessary measure in that behalf. What is significant is that admittedly the respondent filed R.C.C.No.28 of 1995 on the file of the Court below under Section 8 of the Act seeking permission to deposit the monthly rent into the Court which was allowed following which the respondent has been depositing the monthly rent of Rs.500/- into the Court. It is also admitted that the petitioner has been receiving the rents regularly from the Court. There is no specific assertion of non-depositing of the rents before the Court properly by which a positive stand is to be taken in that context. Then it is to be ascertained as to whether the deposit of the rents was made after giving necessary notice to the petitioner either oral or in writing, if not that amounts to the violation of the said provisions of law which amounts to willful default in proper payment of the rents. It is also to be considered as to whether these provisions relating to the deposit of rents are directory or mandatory in nature along with the question as to whether the deposit of the rents before the Court without exactly adhering to the terminology used in those provisions does give benefit to the respondent subject to giving necessary notice of deposit to the petitioner in the context.
11. In MOHAMMED IZHAR ALI v. SMT. OLIVE FOUNSECA 2, it is held by a Full Bench of this Court with reference to relevant circumstances that though the tenant had taken recourse to Section 8 or 9 r/w sub-rules (1) to (5) of Rule 5, he did not comply with the procedure that may attempt to satisfy the Rent controller that his default in paying or tendering the rent was not willful within the meaning of the proviso to Section 10(2)(i) of the Act due to which he should be permitted to pay or deposit such rent within a reasonable time not exceeding 15 days, on which the application for eviction should be rejected, while such a request of the tenant, who did not opt for the procedure under Section 8 or Section 9 read with sub-rules (1) to (5) of Rule 5, would be considered by the Rent Controller on the facts and circumstances making or not making the default willful, where the tenant opted for the procedure under Section 8, but did not comply with sub- rules (1) to (3) of Rule 5 impossible, he makes himself susceptible to the absence of satisfaction for the Rent Controller about his default being not willful consequently disentitling him to any reasonable time to pay or tender the arrears of rent entitling him to have the application for eviction rejected under Section 10(2)(i) proviso, consequently, while taking recourse to Section 8 by the tenant is optional, once that option is exercised, compliance with Rule 5 sub-rules (1) to (5) becomes mandatory in the sense that any non-compliance with the prescribed procedure will positively indicate the willful nature of the default committed in paying or tendering the rent as prescribed. In NIMMAGADDA KRISHNA HARI v. MANEPALLI MANGAMMA 3, it is held by a Division Bench of this Court itself that Section 8(2) is not mandatory but only directory. It is not obligatory to follow the procedure of depositing rent under Section 8 in all cases. There is no duty cast on the tenant to follow the procedure in all cases where landlord refused to receive rent without reasonable cause. The tenant cannot be called willful defaulter so long as he establishes that he tendered the rents but the landlord refused to receive the same. If, however, the tenant chooses to adopt the procedure of depositing the rent under Section 8, he should continue to deposit the rents regularly and within the time as and when the rent falls due. If he is irregular, he may be guilty in payment of rent.
Similar observations were made under similar circumstances in J. SATYANARAYANA v. M. NARASIMHA RAO 4 and V. SOMISETTY v. M/S. V. GURAYYA & SONS 5, KAMALA BAI v. E. RAJESWARI 6. All these decisions make it very clear that though the procedure contemplated is not mandatory when once the tenant chooses to adopt the procedure of depositing the rents he should continue to deposit the rents regularly and within the time as and when the rents fall due. In Kamala Bai's case (6 supra) it is also held that if such MOs sent by the tenant were not received by the landlord, the latter should make the deposits into the Court by due date.
In PROLUGURALLA KOTESWARA RAO v. MADDI HEMALATHA DEVI 7, tenant deposited rents during the pendency of the corresponding proceedings as per the directions of the Rent Controller concerned. Later the matter was taken in Appeal which was dismissed against the tenant. Thereafter the tenant sent the rents by Money Order to landlord but the landlord refused to receive them which necessitated the tenant to take steps for obtaining permission to deposit the rents in the Appellate Court which was dismissed. This Court under those circumstances held that the tenant could not be said to be a willful defaulter. This decision clearly endorses that it is also appropriate to deposit the rents as directed by the Rent Controller or the Appellate Authority as the case may be without resorting to the other modes of payment of the rents as envisaged specifically in the provisions referred. Even though specific and different modes of deposit of the rents are envisaged in the provisions it cannot be said that those provisions are in contravention of the mode of deposit of the rents before the Rent Controller or the Appellate Authority as directed by that Authority particularly when it is held that the provisions are only directory in nature. What is required exactly under the circumstances is proper deposit of the rents before the Authority or before a bank or payment of the rents by MOs as the contingency to do it arises properly observing the necessary formality of giving necessary notice to the landlord. The issuance of notice may be oral or in writing whereas when it is oral the question of intimating about it to the landlord can be determined examining all relevant circumstances. When the respondent deposited the rents into the Court, which the petitioner has collected without fail from time to time, it is sufficient to hold that the latter was given necessary oral notice from time to time by reason of which he had taken necessary steps immediately to collect those amounts from the Court.
12. Thereby the petitioner herein cannot be permitted to claim that the respondent committed default in payment the rents by not following the procedure contemplated under Section 8 and Rule 5. Rule 5 is only subject to Section 8. Hence on that ground the respondent cannot be evicted from the schedule property.
Point No.2:
13. With regards to the bona fide requirement of the premises, it is clearly the evidence of the petitioner as PW-1 that he required the premises for his sister, who is idle, to carry out some business. It is also borne out by the record that she got no experience in any business. When she is idle, entertaining an idea to start any business is not illogical on the other hand is logical. The fact that she does not have any experience in doing any business does not mean that she got no intelligence to carry out any business and only as a ruse that plea was set up for the purpose of vacating the respondent from the premises.
While starting any business, nobody will have any experience whereas they acquire necessary experience after starting the business. I do not find any reason to set aside the finding of the Court below that the petitioner would require the premises for bona fide requirement.
Point No.3:
14. So far as the question of damages is concerned, there is ample evidence to the effect that cracks developed within the premises. Photos marked as Exs.A-4 to A-7 provide that cracks developed to the walls of the building. It is clearly averred in the petition that the respondent did not properly maintain the building and dumped cement bags indiscriminately as a result of which damage is caused to the building which lead to the collapse of the wall and development of cracks to the building. Admittedly the petitioner happened to be the resident of a portion in the same building. Therefore, he would have knowledge if any damage was caused to the building outside, but his claim categorically is that the respondent dumped cement bags indiscriminately in the building which resulted in damage and development of cracks in the walls and collapse of the northern wall of the building in consequence of which several plants were grown in those cracks whereby the building is in dilapidated condition. These circumstances are sufficient to hold that the respondent was responsible for the damage of the building. Further there is no basis to say that he informed the petitioner from time to time to effect necessary repairs of the building. It is not the case of the respondent that in fact he gave such information to the petitioner. Therefore, the respondent is guilty of not doing so.
15. Thereby the respondent is liable to be vacated from the petition schedule property. The Court below properly appreciated the matter and rightly dismissed the appeal upholding the claim of the petitioner. I do not find any merits in the C.R.P.
16. In the result, the Civil Revision Petition is dismissed. No costs.
17. Consequent upon the dismissal of the C.R.P., miscellaneous petitions, if any, pending shall stand closed.
_________________________ G. KRISHNA MOHAN REDDY, J Date:21-11-2012