Andhra HC (Pre-Telangana)
Rasheedulla Khan And Anr. vs Bhagawathi Bai And Anr. on 6 April, 1993
Equivalent citations: 1993(3)ALT437
ORDER D.J. Jagannadha Raju, J.
1. This CRP is filed against the order dated 12-7-1990 in RCA No. 10 of 1988 on the file of the Principal Subordinate Judge, Warangal. The facts leading to the filing of the present CRP are somewhat strange and appalling.
2. The revision petitioners are the tenants. They originally took the premises on rent from the husband of the first respondent and father of the second respondent one Mr. Dhanraj. Rents were being paid upto 1980 to late Dhanraj. After Dhanraj died, disputes arose and then RCC No. 45 of 1981 was filed. It is the claim of the present revision petitioners that as the landlords were refusing to receive rents, they filed RCC 31 of 1981 and that they went on depositing the rents. It was ultimately found by the Court that Mr. S.S. Parvaiz, the advocate who was appearing for the present revision petitioners, deposited only a few amounts and he appears to have misappropriated various amounts that were said to have been paid to him. Ultimately he admitted that he deposited only a few amounts in the Court and that he did not deposit all the amounts given to him by the tenants. He has been kind and generous enough to admit that he has misappropriated large amounts and that he deposited only a few amounts. This fact came to light only when the order in I.A.No. 1612 of 1981 filed by the landlords as a petition under Section 11 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (hereinafter referred to as 'the Act') came to be pronounced on 14-8-1985. After this order was pronounced, I.A.No. 1432 of 1983, a petition under Section 11(4) of the Act came to be decided and the defence was struck off and an eviction order was passed on 28-8-1985. The appeal filed ended in dismissal and then the tenants have come forward with the present revision.
3. Mr. L. Narasimha Reddy, appearing for the tenant-revision petitioners contends that on the date of filing of I.A.No. 1432 of 1983 under Section 11 (4) of the Act, there was no order under Section 11(1) and hence the defence cannot be struck out. He also contends that Section 11(4) of the Act contemplates the Court going into the question whether the tenants could show sufficient cause to the contrary for their failure to deposit the rents. He contends that in this case, as the advocate was paid the amounts and as he swallowed the amounts and as he failed to deposit the rents as instructed by the tenant-clients, the blamable conduct of the advocate constitutes a sufficient cause for the failure of the tenants to deposit the amounts and hence the order of eviction invoking Section 11(4) of the Act should be quashed. He places strong reliance upon Santosh Mehta v. Om Parkash, , Bimal Chand v. Gopal Agarwal, and B.P. Khemka Pvt. Ltd. v. Birendra Kumar, .
4. On behalf of the respondents/landlords, Mr. Bankatlal Mandhani contends that in this case, the failure of the tenants to pay the amount under Section 11 of the Act is clinchingly established. The Court is perfectly justified in passing the order in I.A.No. 1432 of 1983 striking out the defence. He contends that Section 11(4) is mandatory and the various decisions relied upon by the petitioners advocate are not applicable to the facts of our case. He also contends that there is intrinsic evidence in the case to indicate that the tenants were aware of the fact that the money was not deposited and they did not make efforts to promptly deposit the amounts as revealed by their filing I.A.No. 1457 of 1985 on the specific ground that they do not have money and they are unable to raise funds for deposit. They prayed for time. He places strong reliance upon the order passed by the Rent Controller in I.A.No. 1457 of 1985 and Annexure II, which is a copy of the affidavit filed by the parties in support of I.A.No. 1457 of 1985.
5. The crucial question that will have to be considered is whether the misappropriation of the money given to the advocate and his failure to deposit the rents into the Court would constitute a sufficient cause for the tenants to explain away their inability to deposit the rents and whether they are entitled to claim that Section 11(4) of the Act cannot be invoked in their case.
6. Santosh Mehta v. Om Parkash, deals with a case under Delhi Rent Control Act. On facts, the case dealt with by the Supreme Court is very near to the facts of our case. But it should be remembered that his Lordship Justice V.R. Krishna Iyer was dealing with a statute whose scheme is totally different from the present Act and the provisions of Section 15(7) of that Act are totally different from the provisions of Section 11 (4) of the A.P. Act. A full reading of the Judgment clearly indicates that there the tenant Miss Santosh Mehta, who was a working woman, was paying amounts buy cheque and cash to her advocate and such amounts received by the advocate were not deposited in the Court or paid to the landlord. Then she made a complaint to the Bar Council of Delhi against the misconduct of the advocate. In such a background, dealing with the language of Section 15(7) of the Delhi Rent Control Act. His Lordship held that the action of striking out defence of a tenant is a harsh extreme step and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. His Lordship also observed that the Section provides for a discretion and does not impose a mandate. His Lordship felt that a socially informed perspective should be adopted while construing a penal provision. His Lordship observed mat Section 15(7) of the Delhi Act is a facilitative power and the Judge may or may not strike out the defence. A Judicial discretion has built-in-self-restraint and this should be done having in mind the scheme of the statute and the circumstances which are present in the case. In paragraph 4, His Lordship observed, "There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under Section 15 (7) was imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The Provisions contained in Section 15(7) of the Act are directory and not mandatory." His Lordship also held that Section 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out the defence and in appropriate cases, the Controller may refuse to visit upon the tenant the penalty for non-payment or non-deposit. His Lordship further observed that the effect of striking out of the defence under Section 15(7) deprives the tenant of the protection given by Section 14 and, therefore, the powers under Section 15(7) of the Act must be exercised with due circumspection. His Lordship held that the facts revealed that she did not fail to pay the rent or deposit rent and before invoking the extreme step of striking out the defence, she should have been given an opportunity to contest the claim of the landlord. In that view of the matter, the appeal was allowed and the order under Section 15(7) was found illegal.
7. Considering the fact that the scheme of the Delhi Act and the wording of Section 15(7) is totally different, I am of the view that this decision cannot apply to the facts of our case. And while construing Section 11(4) of the A.P. Act which is mandatory in character the word used in the A.P. Act is "shall" while in Delhi Act, Section 15(7) uses the word "may".
8. Bimal Chand v. Gopal Agarwal (2 supra) is a case arising under Order 15 Rule 5(2) CPC and it deals with a case of striking out the defence on failure to deposit admitted rent. The Court pointed out that there is a reserve of discretion vested in the Court entitling it not to strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. It will always be a matter for the judgment of the Court to decide whether on the material before it, notwithstanding the absence of a representation under Sub-rule (2), the defence should or should not be struck off. The word "May" in Sub-rule (1) merely vests power in the Court to strike off defence. It does not oblige it to do so in every case of default. Sub-rule (2) obliges the Court before making an order for striking off the defence to consider any representation made by the defendant in that behalf.
9. In the present case on hand, as soon as the order in I.A.No. 1612 of 1981 was pronounced on 14-8-1985, the parties came to know that the moneys paid were not deposited into the Court by the advocate. When I.A.No. 1432 of 1983 was filed under Section 11(4) of the Act, specific allegations were made to the effect that the amounts were not deposited. It is, no doubt, true that Mr. S.S. Parvaiz, the advocate, who is mainly to be blamed kept the party in dark when the order was passed in I.A.No. 1432 of 1983 on 28-8-1985. The amounts were not deposited immediately. They took a lot of time for depositing the amounts. In fact, in I.A.No. 1457 of 1985, which was filed on 12-8-1985 i.e., before the order in I.A.No. 1432 of 1983 was passed, the party only complained that he had not yet received a certified copy of the order in I.A.No. 1612 of 1981 and that he could not raise funds and amounts to deposit the rents by this date. So he prayed for extension of time for deposit of rents from 12-12-1982 to 2-9-1985. The record now reveals that subsequently only in December 1985 after Mr. S.S. Parvaiz admitted his guilt and passed the receipt dated 17-12-1985 acknowledging receipt of Rs. 9,600/- towards the rent from November, 1981, to October, 1985, the amount was deposited into the Court. The chalan indicates that it was sought to be deposited on 17-12-1985. If we are to consider the language of Section 11 of the Act, we find that Section 11 gives importance to non-payment or non-deposit. It does not speak of wilful default or wilful non payment. In the course of the appellate order, the Judge appears to have had a confusion regarding the concepts and he tried to import the theory of a wilful default for the non-payment of the arrears of rent, though Section 11 of the Act does not speak of wilful default. It should be remembered that while Section 10 speaks of wilful default and default, Section 11(1) only speaks of payment of all arrears of rent or deposit of rents. Sub-section (4) talks of a tenant failing to pay or deposit the rent as aforesaid. Even if we ignore all the misconduct indulged in by Mr. S.S. Parvaiz after the order in I.A.No. 1612 of 1981 has been passed on 14-8-1985, the tenants had no excuse for their non-payment or failure to deposit the arrears of rent. The misconduct of Mr. S.S. Parvaiz, their earlier advocate, cannot come to the rescue of the tenants. Even if we assume that it comes as an excuse to show sufficient cause to the contrary, the period between 14-8-1985 to 17-12-1985 stands unexplained. In fact, the record reveals that the actual deposit was made on 24-12-1985.
10. Yet another decision on which strong reliance is placed by the revision petitioners is the decision in B.P. Khemka Pvt. Ltd. v. Birendra Kumar (3 supra). That decision deals with West Bengal Premises Tenancy Act 12 of 1956 as amended by Act VI of 1967. It should be remembered that during the pendency of the proceedings, Section 17 was amended and certain benefits were conferred on the defaulting tenants. In such a background, the Court found that if the interpretation given by the High Court is to be accepted and Section 17(3) is to be construed in strict sense, then the legislative intendment of the amendment would be defeated and the benefit of the amendment will not be available to the tenants. The situation that was dealt with by the Supreme Court is totally different from the situation faced by this Court in this case. The observations made in the above decision viz., B.P. Khemka Pvt. Ltd. v. Birendra Kumar (3 supra) cannot apply to the facts of our case.
11. Mr. Narasimha Reddy, in support of his contention, placed reliance upon a decision reported in T. Ramakrishnaiah v. N. Seshadri, AIR 1972 A.P. 280. In that case, during the pendency of eviction proceedings the landlord made an application under Section 11(4) for possession on the ground of tenant's failure to deposit rent. The tenant contested the application on the ground that he was not bound to pay the rent on the first of every month in advance. The tenancy Court after deciding the dispute as to the date of payment straightaway passed orders under Section 11(4) directing the tenant to put the landlord in possession. In such a background, Justice Ramachandra Raju held that such orders should not have been passed without giving some time to the tenant to deposit rent. His Lordship further observed that it cannot be said that there was no sufficient cause for failure to deposit the rent due in the Court.
12. I have earlier indicated in the course of this judgment that even if there was any justification or sufficient cause for non-deposit of rent prior to 14-8-1985,there is absolutely no justification for non-deposit of the rent between 14-8-1985 and 24-12-1985. The above decision viz., T. Ramakrishnaiah v. N. Seshadri, AIR 1972 A.P. 280 cannot come to the rescue of the tenants.
13. Though I uphold the order of the appellate authority, I do so for totally different reasons and I do not subscribe to the reasons given by the appellate authority on various aspects, especially to the concept of wilful default which was introduced by the appellate authority. This revision is devoid of merits and the order passed under Section 11(4) of the Act striking out the defence and ordering eviction is perfectly justified. The CRP is dismissed. No costs.
14. The tenants will have six weeks time to vacate the premises and deliver vacant possession.