Andhra HC (Pre-Telangana)
Sha Shivaji Mansey vs Vallabha Vyas on 9 November, 1999
Equivalent citations: 2000(2)ALD505, 2000(2)ALT306, 2000 A I H C 1914, (2000) 1 RENCR 595, (2000) 2 RENTLR 24, (2000) 2 ANDHLD 505, (2000) 2 ANDH LT 306
ORDER
1. The CRP is filed against the orders of the learned Principal Subordinate Judge, Vijayawada in RCA No.41 of 1983 confirming the order of the learned Principal District Munsif-cum-Rent Controller, Vijayawada in RC No.99 of 1982 dated 8-4-1983.
2. Petitioner is the tenant. The demised premises was let out to the petitioner in the year 1954 on initial monthly rent of Rs.200/- which was being increased from time to time. At the time of filing the application in 1982, the rent was being paid at Rs.300/- per month. White so, the landlord instituted a claim for eviction by filing a petition before the learned Rent Controller, Vijayawada in RC No.99 of 1982 on the ground that the tenant had committed wilful default in payment of rent for the months of March and April, 1982.
3. It was the case of the landlord that he has specifically appointed a clerk to collect the rent and the clerk approached the tenant for collecting the rent for the month of March, 1982 which was not paid on the ground that the cashier was not available and even for the month of April, 1982, the same was not sent. Thereafter, he has filed a claim for eviction on the ground of wilful default on 10-6-1982 which was numbered as RC No.99 of 1982. The claim of the landlord was resisted by the tenant on the ground that there was no wilful default on his part. The rent was being collected by the clerk of the landlord every month, since the clerk did not turn up for two months he has sent the same by money order by including the rent for the month of May, 1982 also. The said money order was refused. Thereafter notice was got issued through an advocate enclosing the cheque for a sum of Rs.900/-. The said notice was replied by the landlord.
4. Before the learned Rent Controller, two witnesses were examined for the landlord and one witness was examined for the tenant. Exs.Al to AI2 were marked while Ex.Bl was marked for the tenant. The teamed Rent Controller after considering the evidence held that the tenant had committed wilful default in payment of rent for the months of March and April, 1982 and accordingly passed an order on 8-4-1993 directing the eviction of the tenant. Aggrieved by the said order, the tenant carried the matter before the Appellate Court. The learned Appellate Court also concurred with the findings of the learned Rent Controller and dismissed the appeal by an order dated 27-9-1995. Thereupon, the tenant carried the matter in revision before this Court.
5. The learned single Judge of this Court passed an order dismissing the revision on the ground that there was no infirmity in the order of the Courts below. But, however, the tenant carried the matter by way of civil appeal before the Supreme Court. The Supreme Court has set aside the order of the learned single Judge and remanded the matter to consider with reference to the Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 namely to go into regularity, legality as well as the propriety of the order. Thus, the matter was remanded back by the Supreme Court with reference to he ground raised by the tenant in the revision. Thus the matter has again come up before this Court for consideration on the directions of the Supreme Court.
6. The learned senior Counsel for the tenant Mr. N. Subba Reddy submits that the orders of the Courts below is wholly erroneous and they failed to consider relevant issue as to whether there was any wilful default on the part of the tenant in accordance with the terms and conditions of the agreement. The learned Counsel fairly concedes that there was default on the part of the tenant in making the payment, but there is no wilful default on his part. He submits with reference to the events that took place. It is the case of the tenant that the rent was being collected by the clerk of the landlord and right from 1954 onwards, there was no default in payment of rent and since the clerk did not turn up, the rent was not paid. But, however, after waiting for two months, the rent was sent by money order to the Vijayawada address of the landlord by including the rent for the month of May, 1982 also. The said money order was refused. Thereafter, a notice was exchanged between the tenant and the landlord. Thus, he submits that the tenant has taken reasonable steps to see that the rent was being paid to the landlord and this cannot be construed as a wilful default on the part of the tenant. He relies on the decision of this Court reported in Gopal Naik v. Habeeb Ali, 1972 (1) ALT 79, and also the decisions of the Supreme Court reported in S. Sundaram Pillai v. V.R. Pattabiraman, , M. Naresh Kumar v. B. Nagalaxmi, , and Girijanandan Singh Parashram (Deceased) by his LRs. v. New Cotton Ginning and Pressing Company, . He again submits that to establish wilful default, there must be a deliberate intentional and conscious violation of the terms of the agreement. Mere failure to pay the rent would not per se constitute wilful default. After referring to the Supreme Court judgments, the learned Counsel submits that under the facts and circumstances of the case, the wilful default cannot be said to be established by any stretch of imagination. This aspect was not considered by the Courts below and the Tribunals below mechanically proceeded with the matter holding that since the rent was not paid for two months, it was construed as wilful default and therefore ordered the eviction, which is not sustainablc in view of the judgments of the Supreme Court referred to above.
7. The learned senior Counsel for the landlord Mr. M.S.K. Sastry submits that the wilful default is an issue which has to be established by adducing satisfactory evidence and the landlord has led evidence of his clerk and also himself to establish that the tenant had wilfully defaulted in payment of rent. He also submits that no reasons have been forthcoming from the evidence led by the tenant why he did not pay the rent for the month of March, 1982 when the clerk of the landlord did not turn up for collecting the rent. This itself is an mala fide attitude on the part of the tenant and thus once he has not discharged responsibility by making payment necessarily, it has to be construed that it is a wilful default on the part of the tenant and the Courts below have considered the evidence on record and come to a conclusion that there was a wilful default on the part of the tenant and such a finding cannot be interfered with by this Court sitting under revisional jurisdiction under Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the 'Act'). He relies on the decision of this Court reported in Vasudeva v. Misri Bai, 1973 (2) APLJ 428, and also the decision of the Supreme Court in S. Sundaram Pillai's case (supra), which was also equally relied on by the learned Counsel for the revision petitioner. The learned Counsel also submits that the Supreme Court has categorically held that it is the duty cast on the tenant to pay the rent as per the contract. But, he cannot wait till the clerk of the landlord approaches the tenant, as was held by the Supreme Court in Civil Appeal No.571 of 1986. That was a case, where the very same landlord has instituted the claim for eviction on the ground of wilful default. That was found in favour of the landlord in both the Courts below. When the matter was brought before the Supreme Court by the tenant the following observations were made:
"Law throws an obligation on the tenant to pay the rent properly within a specified date. He cannot expect the agent of the landlord to come and on his failure to come, tenant cannot say that there was no obligation to pay the rent".
Thus, he submits that similar set of facts are present in this case also, and the landlord is also same person who had instituted the suit in the present suit, but on a different tenant. Thus, he submits that the obligation casts on the tenant to pay the rent, cannot be obviated and if he fails to discharge this obligation, the tenant should face the risk of eviction on failure to pay the rent.
8. 1 have given consideration to the respective contentions of the learned Counsel for the parties.
9. The only issue that arises for consideration in this revision is whether there was wilful default in payment of rent by the tenant for the months of March and April, 1982?
10. The primary Tribunal basing on the evidence available on record held that there was wilful default on the part of the tenant and directed eviction and in the appeal it was confirmed. It has to be seen whether the orders of Court below are legal and valid so as to sustain the issue whether there was any wilful default on the part of the tenant.
11. In Sundaram Pillai's case ( supra) the Supreme Court was dealing with the interpretation of Section 10(2) proviso and explanation of Tamil Nadu Buildings (Lease, Rent and Eviction) Act, 1960. In that process, the Supreme Court had referred to similar Rent Control Acts of other States including the State of Andhra Pradesh. After surveying various Acts prevailing in the States and the Union Territories, the Supreme Court observed that provisions regarding the eviction for default in payment of rent were not uniformed and it differed from State to Stale. Some Acts did not mention (wilful default at all), some mention it in negative form while some put it in a affirmative form. It further observed that the provisions relating to eviction work out in three different types of defaults-
(1) Acts, which expressly mention 'wilful default' without defining the same.
(2) Acts which do not mention the words 'wilful default' at all but confer a right on the landlord to evict the tenant on pure and simple default after a certain period of time when the rent has become due, which is also different in different States.
(3) Acts which use the expression 'wilful default' but in a negative form rather than in an affirmative form.
It further observed as follows:
"We might usefully refer only to those Acts which contain the term 'wilful default' either in a negative or in a positive form. These Acts, as already indicated, are the A.P., Orissa, Pondicherry and the Tamil Nadu Acts. Though we are concerned mainly with the Tamil Nadu Act yet in order to understand the contextual background of the words "wilful default' and its proper setting, we might briefly examine the relevant provisions of the aforesaid Acts. Section 10(2) of the A.P. Act is the only provision, which confers protection to the tenant from eviction under certain conditions. Proviso to that sub-section runs thus:
Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected.
It may be noticed that although the default contemplated by the Act is wilful yet it has been put in a negative form, which undoubtedly gives sufficient leeway to the tenant to get out of the rigours of the statutory provision....."
12. Thus, interpreting of Section 10(2) of A.P. Act and similar other Acts of Orissa and Pondicherry, the Supreme Court held that these Acts undoubtedly contemplated that default simplicitor would not be sufficient to evict the tenant, but it must be further shown that the default was wilful.
13. The word 'wilful default' has been considered by the Supreme Court on number of occasions. The Supreme Court after referring to various Law Dictionaries culled out consensual meaning of expression 'wilful default' to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing there from. 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 Tamil Nadu Act or other State Acts which are in pari materia (See: 5. Sundaram Pillai's case (supra)).
14. In D.C. Oswal v. V.K. Subbiah and other, , the case was laid by the landlord for wilful default of tenant for three months. The primary authority dismissed the petition, but, however, it was reversed by the Appellate Court and confirmed by the High Court. The Supreme Court held that in a situation where the landlord had consented to collect for two to three months at a time non-payment of rent for three months cannot constitute wilful default. Since in the present case default was of three months at the time of filing of the case, we are prepared on the basis of the evidence on record that it was not a case for wilful default. Accordingly the conclusion reached in appeal and upheld by the High Court would not be sustainable.
15. In Dakaya Alias Dakaiah v. Anjani, , while referring to the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 the Apex Court held that when the tenant immediately on receipt of demand notice sent the entire amount under default before filing of suit, it cannot be said that there was wilful default on the part of the tenant. Therefore, the orders of the eviction were set aside.
16. In Naresh Kumar's case (supra), the Supreme Court observed as follows:
"It would appear that the High Court did not take account of the fact that the letter written by the advocates for the landlady was dated 27-10-1980 and that even thereafter, until the eviction petition was filed on 2-12-1983, rent had been paid and accepted at the same irregular intervals. In other words, earlier practice had continued. The High Court ought not to have interfered, in the circumstances, with the findings of the authorities below. The High Court also does not appear to have taken note of the fact found that the default, if any, prior to the filing of the eviction petition was only of two months and not three".
17. In Girijanandan Singh Parashram's case (supra), the Supreme Court held as follows:
"It is well settled hat in the absence of any express or implied agreement to the contrary, in a monthly tenancy, the rent is payable at the end of each month of tenancy. In the instant case, however, perusal of Annexure 'B' Schedule filed in the Court of the Rent Controller, shows that right from the inception of tenancy, rent was not being paid at the end of every tenancy month but used to be paid sometimes after 2 months and sometimes even after 3 to 6 months. It, therefore, appears that the stand of the tenant-appellant to the effect that a practice had developed between the parties to make the payment of the rent as and when demanded on behalf of the landlord cannot be said to be untenable. That being the factual position, the High Court was not justified in interfering with the finding of fact recorded by the learned Resident Deputy Collector in exercise of the appellate powers. The Resident Deputy Collector, on the basis of the evidence on the record, categorically held that the tenant did not suffer from any financial disability to pay the rent nor had he developed a habit of being a habitual a defaulter and that on the contrary, rent was being paid as per the practice which had developed between the parties at different intervals of time. The material on the record justifies that finding and it should not have been upset by the High Court in a petition under Article 227. We are, therefore, of the opinion that the order of the High Court cannot be sustained and we accordingly set it aside."
18. The Supreme Court had considered similar situation in Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao, , and held in Para 4 as follows:
"The short question then is whether it can be said that the tenant's default to pay or tender rent from December, 1977 to May, 1978 was not wilful to avail of the benefit of the proviso extracted above. It may be noticed that in cases where the tenant has defaulted to pay or tender the rent he is entitled to an opportunity to pay or tender the same if his default is not wilful. The proviso is couched in negative form to reduce the rigour of the substantive provision in Section 10(2) of the Act.
An act is said to be wilful if it is intentional, conscious and deliberate. The expressions 'wilful' and 'wilful default' came up for consideration before this Court in S. Sundaram Pilial, V.R. Pattabiraman, . After extracting the meaning of these expressions from different dictionaries (See: pp 659 and 660) this Court concluded at p.661 as under:
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 there from".
Since the proviso with which we are concerned is couched in negative form the tenant can prevent the decree by satisfying the Controller that his omission to pay or tender the rent was not wilful. If the controller is so satisfied he must give an opportunity to the tenant to make good the arrears within a reasonable time and if the tenant does so within the time prescribed, he must reject the landlord's application for eviction.
In the present case, it is not in dispute that the tenant did not pay the rent from December, 1977 to May, 1978 before the institution of the suit. Under the eviction notice served on him in December, 1977 he was called upon to pay the rent from December, 1977 only. The appellant-tenant did not pay or tender the rent from December, 1977 to May, 1978 not because he had no desire to pay the rent to the respondents but because the bona fide believed that he was entitled to purchase the property under the oral agreement of 14th October, 1977. He had also paid Rs.5,000/- by way of earnest under the said oral agreement. True it is, his suit for specific performance of the said oral agreement has since been dismissed but he has fifed an appeal which is pending. He, therefore, bona fide believed that he was entitled to purchase the property under the said oral agreement and since he had already paid Rs.5,000/- by way of earnest thereunder he was under no obligation to pay the rent to the respondents. In order to secure eviction for non-payment of rent, it must be shown that the default was intentional, deliberate, calculated and conscious with full knowledge of its consequences. Here is a tenant who felt that even though he had invested Rs.5,000/- as earnest the vendor1 has , sold the property to the respondents in total disregard of his right to purchase the same. This is not a case of a tenant who has failed'to pay the rent without any rhyme or reason. He was not averse to paying the rent but he genuinely believed that he was under no obligation to do so as he had a prior right to purchase the property. We are, therefore, of the opinion that this is a case in which the Controller should have involved the proviso and called upon the appellant to pay the arrears from December, 1977 to May, 1978 within a certain time. Failure to do so has resulted in miscarriage of justice. We are, therefore, of the opinion that the ejectment decree cannot be allowed to stand".
19. Some of the decisions of this Court are also cited at the Bench. In Amura Rathnaiah v, Mysore Kasamma, 1958 An.WR 518, the learned single Judge considering the term 'wilful default' observed thus:
"Wilful default connotes that the default or omission has been the result of deliberation and supine indifference. As to whether the omission was deliberate and intentional would have to be Judged from the various circumstances arising in the case, such as past conduct, the normal behaviour of the tenant in the discharge of his obligation to the landlord and performing the other conditions of the tenancy.
In order to arrive at a finding of the tenant being in wilful default the only fact of the tenant being in arrears of rent would not be enough, but the Court has to consider as to whether there was a conscious violation of the obligation to pay the rent or that he had exhibited a supine indifference. In the instant case the landlady admitted that rents used to be paid by he tenant once in two months and sometimes once in three months and that she used to receive the same without any objection. This circumstance coupled with the fact that the accrued rent was sent by MO without demur before the proceedings commenced would not warrant a conclusion that the tenant was a wilful defaulter. A default is different from wilful default which has not been established in the instant case".
20. In Bhagwanji v. Sukhdev Pershad, CRP No.5490 of 1980, dated 14-11-1983, the learned single Judge Ramaswamy, J., (as he then was) observed thus:
"The finding as to wilful default is a mixed question of fact and law and therefore the High Court can go into that question and find out whether the finding recorded by the Appellate Court is based on correct legal position. In the instant case admittedly there is a default in payment of rent for 3 months. The tenant is occupying the premises for doing his business and the respondent is not seeking recovery of possession for personal occupation. Under these circumstances the question is whether the explanation offered by the petitioner is plausible of probable when the explanation of the tenant that the clerk of the respondent is collecting the rent from the petitioner is not in dispute, the question whether he collected the rent at irregular intervals and the petitioner paid the rent as and when the clerk of the respondent came and demanded the rent becomes large. Except this default in payment of rent for the said 3 months, there is no evidence to show that he committed default in any earlier occasion. On the totality of the facts and circumstances, the explanation offered by the petitioner appears to be plausible and probable and the lower Appellate Court has not considered the question from this perspective."
21. The learned Counsel for the landlord however relied on the decision of Division Bench reported in Vasudev's case (supra) where the Court recorded the following views:
(i) The payment or the tender of the rent by the tenant, as agreed to between him and the landlord is a condition precedent for enabling him to avail himself of the protection afforded under the Act and if he commits a default, he will be deprived of that protection.
(ii) If the defaults not a wilful one, the tenant will not be deprived of the protection under the Act.
(iii) Whether or not, in a given case, the tenant's default to pay or tender the rent is wilful, is a matter that has got to be ascertained taking into account, primarily the conduct of the tenant, who was obliged to pay the rent.
(iv) It is not the duty of the landlord to go after the tenant for the collection of the rents due so as to enable the tenant to rely upon the circumstance of the landlord's not collecting the same in due time as one entitling him to characterise the default as not a wilful one.
(v) The expression 'wilful' does not imply anything blameable, but indicates merely that the tenant is a free agent and that what has been done by him arises from a spontaneous action of his will and the same amounts to nothing more than this, namely, that he knows that he is doing and intends to do what he is doing and that he is a free agent.
(vi) It is for the tenant to establish that he is prevented from discharging the obligation of paying or tendering the rent to the landlord, and as such the conduct of the landlord in the matter of collecting the rent on previous occasions at irregular intervals without protect is not material, especially, when he chooses to file an application for eviction.
(vii) There cannot be an agreement to pay the rent at irregular intervals, unless there is proved to be one for showing that the default is not a wilful one.
(viii) If there is a conscious violation of the obligation to pay the rent and if there is a supine indifference exhibited on the part of the tenant in the matter of payment of rent as agreed to, that constitutes wilful default".
22. Thus from the reading of the aforesaid decisions, it is clear that term 'wilful default' has to be construed with reference to the facts of each case and there is no general principle which can be applied. In some cases, it may be that the rent was being accepted by the landlords at irregular intervals or in some cases the tenant had defaulted in payment of rent for bona fide reasons. Therefore, a default per se is not a wilful default. It has to be decided on the basis of evidence on record. But, the question is whether such a wilful default has been committed by the tenant in the instant case basing on the facts available on record.
23. It is not disputed that the tenant has been paying the rent from 1954 and there was no default at all at any time right from 1954. It is only for the first time that the allegation has been levelled against the tenant that he has committed wilful default in payment of rent for the months of March and April, 1982. The tenant had also sent a money order for Rs.900/- towards the rent for the months of March, April and May, 1982 on 12-6-1982 which was refused. But, it is sought to be contended by the learned senior Counsel for the landlord that if the landlord had accepted the money order, he would have waived his right to claim eviction. Nothing could have prevented the landlord to receive the rent under protest or without prejudice to his right to proceed against the tenant. Be that as it may, sequence of events have to be necessarily construed for the purpose of arriving that the default was deliberate or intentional default on the part of the tenant. The Appellate Court has referred to various decisions, but without applying the facts in the present case and its conclusion are that the tenant had committed default, even though the issue was whether there was wilful default. He did not record any positive findings as regards the wilfiil default. The learned senior Counsel for the landlord submits that the word 'wilful default' is an omission as the issue itself was framed whether there was any wilful default. But, this Court sitting under revisional jurisdiction cannot substitute the omissions, which go to the root of the matter. The preceding and attendant circumstances are also equally essential to form an opinion as to there was any wilful default in payment of rent. The Supreme Court has very categoric enough to state that if the tenant failed to remit the rent inspite of repeated demands and commits irregularity in payment of rent successively, then it cannot be said that here was no wilful default on the part of the tenant. But, in the instant case sole incident that has occurred after a period of 28 years, but it cannot also be said that he simply committed default which cannot be said to be a wilful default. Thus, I am satisfied that the Appellate Court has not considered the matter in proper perspective keeping in view the dicta laid down by the Supreme Court referred to above. Therefore, I am of the considered view that the matter has to be re-considered by the Appellate Court and come to a definite conclusion whether there was any wilful default on the part of the tenant. It is only when it comes to the conclusion that there was wilful default, the further orders as per law have to be passed.
24. Under these circumstances, the order of the Appellate Court is set aside and the matter is remitted back to the Appellate Court for fresh consideration on the basis of the record available, keeping in view the decisions of the Supreme Court on the subject. The Appellate Court shall hear the parties and pass appropriate orders uninfluenced by any observations made in this order, within a period of three months from the date of receipt of a copy of this order. No costs.