Andhra HC (Pre-Telangana)
G. Ganga Reddy vs P. Madhavaiah on 5 August, 2004
Equivalent citations: 2005(2)ALT448
ORDER S.R.K. Prasad, J.
1. The tenant has preferred this revision petition against the order of eviction passed by the Additional Chief Judge, City Small Causes court, Hyderabad in R.A.No. 149 of 1998. The jural relationship between the landlord and tenant is not in dispute. The landlord has contended that there was wilful default in payment of rents regarding the premises during August 1995 to November 1995 and the shop was required for his bona fide requirement to run business by his sons. The same is opposed by the tenant alleging that he has tendered the rents by way of demand draft as well as money order and he has not committed any default. The tenant has also resisted eviction that there was no bona fide requirement for the landlord to seek eviction. The IV Additional Rent Controller gave a finding that there was wilful default in payment of rents and there was no bona fide requirement for the landlord to claim the premises for his personal use and ordered eviction in R.C.No. 787 of 1995. Thereupon, the tenant preferred an appeal in R.A.No. 149 of 1998. The learned Additional Chief Judge, City Small Causes Court, Hyderabad, confirmed the finding of the trial court and dismissed the appeal, Aggrieved by the same, this revision has been preferred by the tenant.
2. It is mainly contended by the learned counsel appearing for the revision petitioner that there is no wilful default in this case since he has tendered the rents by sending demand draft and also sent the amount by money order, which has been refused. It is further contended that the findings arrived at are not based on facts.
3. The learned counsel appearing for the respondent, who is landlord, contends that concurrent findings of fact have been given and there is no need to interfere with the eviction orders passed. He has placed reliance on the decision reported in T.S. Prakash v. Xavier Emmanuel, wherein it is stated at para 10 as under:
"Both the Courts below have concurrently held that the petitioner committed wilful default in payment of rents for three months, viz., July 1987 to September 1987 and also that the landlord bona fide requires the petition schedule premises for personal occupation. The findings recorded by the Courts below are findings of fact, reached on a careful appreciation of the entire material evidence available on record and those findings of fact cannot be interfered with by this Court in this revision petition."
4. No doubt, this Court normally will not interfere with the concurrent findings of fact arrived at by both the courts unless they are shown to be perverse and not based on the material placed before the courts. The short point that arises for consideration is whether the tenant tendered the rents, which has been refused by the landlord and seeks for eviction.
The Apex Court had an occasion to deal with the expression 'wilful default' in the decision reported in S.Sundaram v. V.R. Pattabhiraman, AIR 1995 SC 582 at para 25 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 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."
It is stated in Uligappa v. S. Mohan Rao, 1969 (2) ALT 268 that the landlord's right to get possession arises not on the determination of tenancy but arises only when he makes out any one of the grounds under Section 10(2) and (3) of the A.P. Buildings (Lease, Rent and Eviction) Control Act. It is also observed that in other words the contractual tenancy because of the enactment becomes statutory. Suffice it to say, the stipulation of notice under contractual tenancy cannot have bearing when it comes to initiation of proceedings under the said Act. Hence, the term incorporated that one month's notice is required by either party to terminate the notice will not have much bearing. It is also observed by the Supreme Court in Dakaya v. Anjani, AIR 1995 SC 383 that the tenant immediately on receipt of the demand notice sending entire amount under default before filing of suit does not amount to wilful default. It is also stated in Kanta Bai Asawa v. Kranti Swaroop Machine Tools Pvt. Ltd., that when default in payment of rent by date stipulated in agreement in advance but payment made within a few days thereafter amounts to belated payment and not wilful default. The relevant portion at para 8 reads as follows:
"The learned Rent Controller on consideration of the evidence adduced found that the tenants had committed wilful default in payment of taxes and that they are liable for eviction and consequently allowed the petitions by a common order dated 12-6-89. Aggrieved by that order the tenants have filed appeals before the Chief Judge, City Small Causes Court, Hyderabad. The learned Chief Judge allowed those appeals by a common order dated 30th July, 1990. He observed that though there was default in payment of rent in the sense that it was not paid by 10th of every month in advance as stipulated in the agreement, yet they cannot be deemed as wilful defaults as would entitle the landlords to evict the tenants inasmuch as they were only belated payments. The learned Chief Judge, refused to treat them as wilful defaults warranting an order of eviction. In the rental deed it is stipulated that the rents are payable by 10th of every month in advance. Except in respect of the rent payable for September, 1985 the tenants had paid rent either by cheque or draft within the few days after 10th. The Chief Judge observed that the landlords have with them an advance of Rs. 10,000/- in respect of each mulgi and that therefore it would not be proper to treat these belated payment as amounting to wilful default. It is true that the landlords received a cheque for Rs. 1000/- towards payment of rent for both the mulgies. But when the cheque was presented it was dishonoured and that payment was made in December, 1986. The learned Chief Judge observed that this dishonour of the cheque was not intimated to the tenants. But it would be seen from the record that the landlords filed an application for amendment of the petition raising the plea regarding nonpayment of rent for September, 1985. The same was allowed. In that application the tenants had also filed a counter. So, it cannot be said that the tenant had no knowledge of dishonour , of the cheque. The rent for the month of September, 1985 was paid only in December, 1986 as admitted by the tenants themselves. But according to the recitals in the lease deed the landlords would be entitled to ask for eviction if there is default in payment of rent for any two months (not two consecutive months as observed by the learned Chief Judge). Under the circumstances, I find that the learned Chief Judge was right in refusing to order eviction on the ground of wilful default in payment of rent."
It is clearly stated in this decision that the landlord is not entitled to order eviction on the ground of wilful default in payment of rent for only one month.
5. In the light of the above principles, I now proceed to deal with the case. It is a case where rent is stipulated to pay immediately on the 10th of every month. No doubt, the tenant has got grace period of 15 days to pay the rents. As can be seen from Exs.B -2 and B-3, covering letter, it appears that amounts were sent by demand draft and the same was refused. Subsequently, amounts were sent by money order as can be seen from Exs.B-5 and B-6. The same was also refused. The question that has to be considered is whether such conduct amounts to wilful default. It is clearly stated by this Court that eviction cannot be ordered for failure to tender the amount for few days immediately after the time stipulated for payment of rents. Some scope has to be given for the party to tender the amount. That is why the statute contemplates giving grace period for the tenant to pay the rents. When the tenant becomes a chronic defaulter, the statute takes serious view and pass eviction orders when the landlord invokes its jurisdiction and seeks for eviction. All the defaults will not come under wilful default. The default should be deliberate and intentional and the tenant must be aware of the legal consequences. It is a case where the tenant has sent the amounts by means of demand draft. No doubt in the letter mentioned therein the month was wrongly mentioned. The fact is that he has tendered the amount, which has been refused. Even money orders were also refused. Hence, it cannot be styled as wilful default in this case. Time and again, it is stated that default in payment of rents for one or two months, the courts cannot view it seriously and order eviction of the tenant from the premises since it causes the very object of the statute which has been passed by the Legislature for adjudicating the rights between the tenant and landlord and giving protection to both of them. If all the circumstances with cumulative effect are taken into consideration, the default alleged cannot be styled as wilful default in this case. Both the courts below have misinterpreted the alleged facts and law and thereby led to miscarriage of justice or injustice. This Court cannot but interfere and state that this is a case of default but not wilful default. The tenant has sufficiently explained stating that the landlord did not receive the amount. In that view of the matter, the orders of eviction passed are liable to be set aside and I, accordingly, set aside the same.
The civil revision is allowed accordingly. No costs.