Andhra HC (Pre-Telangana)
Hari Prasad Badruka vs Tellukunta Laxmi And Ors. on 10 December, 1999
Equivalent citations: 2000(1)ALT551
ORDER C.Y. Somayajulu, J.
1. The revision petitioner is the landlord and the respondent is the tenant.
2. The revision petitioner filed R.C. No. 676 of 1990 under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act) seeking eviction of the first respondent from the mulgi bearing No. 15-9-490 on the ground that she committed wilful default in payment of rent from August 1988 onwards. The first respondent filed her counter contending that when the rents for the months of August and September, 1988 were refused she sent the same through Money orders and since those Money orders were also refused and since there was no reply to the notice sent to inform the bank where deposit of rent could be a made she filed a petition under Section 8 of the Act seeking permission of the Court to deposit the rents into the Court and is regularly depositing the rent into the Courts therein and as such there is no wilful default in payment of rent on her part and so the petition is not maintainable.
3. During the pendency of the R.C. the first respondent died. Respondents 2 to 5 were brought on record as her legal representatives. The revision petitioner did not adduce any evidence on his behalf. On behalf of the first respondent, second respondent was examined as R.W.I and Exs.R-1 to R-67 were marked on behalf of the respondents. The learned Rent Controller holding that there was no wilful default in payment of rents dismissed R.C. No. 676 of 1990 by his order dated 26-9-1994. Appeal against the said orders in R.A. No. 806 of 1994 preferred by the revision petitioner before the Additional Chief Judge, City Small Causes Court, Hyderabad was dismissed by the order dated 4-11-1997. Hence, this revision by the landlord.
4. The Courts below dismissed the petition for eviction on the ground that rent is being deposited into the Court within time in the petition filed by the respondents under Section 8 of the Act in R.C. No. 35 of 1989. However, admittedly as and when the amount is being deposited into Court notice of deposit was not given to the revision petitioner and challans evidencing deposit of amounts into the Bank, were not being filed into Court immediately after deposit. Smt. Manjiri S. Ganu, learned Counsel for the revision petitioner contended that as per Rule 5 of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, (for short 'the Rules') notice of deposit has to be given to the landlord and since no such notice is given, the deposit cannot be said to be a valid deposit, relieving the tenant of the consequence of being a wilful defaulter under the Act and so it should be held that the appellant is entitled to seek eviction of the respondents. In support of her contention she placed reliance on Sekhar Chand Swami v. Smt. Savitri Agarwalla, 1997 (2) All India Rent Control Journal 162 and Chittaranjan Ghosh v. Abdul Rahman, 1997 (1) R.C.R. 249. The contention of the learned Counsel for the respondents is that the respondents have been regularly depositing rents into the Bank and the relevant challans were also filed into Court, though irregularly, and contended that the fact that challans evidencing deposit of money into the bank were not filed into Court immediately after the deposit and notice of deposit was not being given to the revision petitioner will not clothe the revision petitioner with a right to seek eviction of the respondents on the ground of wilful default in payment of rent as no time limit is fixed by Rule 5 of the Rules either to give notice or to file the challans into Court.
5. The learned Additional Chief Judge by the impugned order in R.A. No. 806 of 1994 observing that the question of default in payment of rents was dealt with in detail by the lower Court (Rent Controller) held that the finding of the lower Court (Rent Controller) does not warrant any interference and dismissed the appeal, without giving any reasons independently. So it is clear that the learned Additional Chief Judge adopted the reasoning given by the Rent Controller in its entirety and has not taken a different view or adopted a different reasoning for holding against the revision petitioner.
6. The Rent Controller in Para 9 of his order, on the premise that since the averments in the petition and cross-examination of R.W.1 do not disclose that a date was fixed for payment of rent, held that there is no fixed date for payment of monthly rent. The learned Rent Controller, obviously did not go through the chief-examination of R.W.I. The first sentence in the chief-examination of K.W.I reads "I am the second respondent. Monthly rent is Rs. 150/- payable on or before 10th of every month in advance". When the tenant clearly stated in his chief-examination that the monthly rent is payable on or before 10th of every month in advance, revision petitioner not mentioning the date fixed for payment of rent is of no consequence. Therefore, the finding of the learned Rent Controller that since there is no evidence to show that any date was fixed for payment of monthly rents, the tenant as per Section 10(2) of the Act can pay or tender rent by the last day of the month next following that for which the rent is payable is not sustainable, and therefore is set aside for the reason that R.W.I clearly admitted in his chief-examination that the rent is payable on the 10th of every month in advance.
7. As per Section 10(2) of the Act when a date is fixed for payment of rent, the tenant has to tender or pay the rent due within 15 days of the date fixed for payment. If no date is fixed he can pay or tender the rent before the expiry of the last day of the month next following that for which the rent is payable. Since in this case, according to R.W.I rent for the suit property is payable in advance on 10th of every month, rent has to be paid or tendered before 25th of every month in advance. Thus rent for August 1988 has to be paid or tendered before 25th August 1988 and rent for September, 1988 has to be paid or tendered before 25th September, 1988 and so on. Second respondent as R.W.1, during cross-examination stated that he is depositing challans into the Court, but no separate notice (of the deposits)is given to the revision petitioner. From Ex.R-1 it is seen that rent for the months of August, 1988 to December, 1988 amounting to Rs. 750/- was deposited on 28-1-1989. By the date of deposit of that amount of Rs. 750/- rent for the month of January, 1989 had fallen due, because as per the evidence of R.W.I the rent has to be paid in advance before 10th of every month. So the rent for the month of January, 1989 has to be paid or tendered before 25th January, 1989. Rent for the month of January, 1989 was deposited, as seen from Ex.R-2 on 13-2-1989. Similarly rent for the month of February, 1989 was deposited on 9th March, 1989 as seen from Ex.R-3. Rent for the month of March 1989 was deposited on 13-4-1989. Thus it is clear that rent for each month was not being deposited in advance as per the agreement, but was being deposited in the next month.
8. From the certified copy of the ledger account relating to this R.C. from 1988-89 to 1999-2000, it is seen that challans evidencing the deposit of rent of Rs. 750/-, under Ex.R-1, was filed into the Court on 10-2-1989. Challans for payment of rents from January to July, 1989 for seven months were filed into Court only on 31-8-1989. Challans relating to deposit of rents for the months of August to September, 1989 were filed into Court on 15-12-1989 and challans relating to deposit of rents for October, 1989 to January, 1990 were filed into Court on 9-2-1990. Challans relating to deposit of rents made on 6-3-1990,6-4-1990,10-5-1990, 7-6-1990, 10-7-1990 were filed into Court only on 10-8-1990. For subsequent period i.e., amounts deposited from August 1990 to January, 1992 relating to rents from July, 1990 to December 1991 the challans were filed into Court only on 25-2-1992. In respect of the deposits made for the subsequent period also the challans evidencing deposit of money into bank were filed into Court months or several months, after the deposit and for no month the rent was deposited in advance and was deposited only in subsequent month.
9. Sub-rules (3) to (5) of Rule 5 of the Rules are relevant for deciding the point in issue. They read-
"(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 offices for the rents deposited under Sub-section (5) of Section 8 or Section 9 or Section 11."
It is the contention of the learned Counsel for respondents that as per Rule 5(4) it is for the Court to issue notice to the landlord and the said rule does not contemplate notice of deposit being given by the tenant to the landlord. It is no doubt true that Sub-rule (4) of Rule 5 of the Rules, on which strong reliance is placed, reads, "....... take necessary action for the service of the notice of deposit on the person or persons concerned within seven days of the delivery thereof". But that is only a half portion of the rule. The next sentence of Subrule (4) of Rule 5 reads "The notice of deposit shall be served on the person or persons concerned in one or other modes specified in Rule 16".
10. Rule 16 of the Rules contemplates the following modes of service:
"(a) personally by delivering or tendering to him the notice or order; or
(b) if such' person is not found, by leaving the notice or order at his last known place of abode or business or by giving or tendering the same to some adult member of his family; or
(c) if such person does not reside in the area within the jurisdiction of the Controller or the appellate authority, by sending the same to him by registered post, acknowledgment due; or
(d) if none of the means aforesaid is practicable, by affixing the same in some conspicuous part of his last known place of abode or business.
Rule 17 of the Rules, which prescribes the Court fee for service of notice lays down that for notice of deposit under Rule 5 Court fee of Re.l should be deposited by the -applicant. It is not the case of the respondents that as and when the challans, evidencing deposit of money into the bank are filed into Court process fee for service of notice of deposit on the revision petitioner was also paid. If a tenant does not tender or pay the rent to the landlord within the stipulated date as per Section 10(2) of the Act, he would become a defaulter and if such default is found to be 'wilful default' it is a ground for the land lord seeking his eviction from the demised premises. The position of the tenant who is either a petitioner or a respondent in any proceedings before the Rent Controller under the provisions of the Act cannot be better than the position of a tenant against whom no proceedings are pending. To put it in other words a tenant against whom proceedings for eviction are pending cannot have better rights than the tenant against whom no proceedings are pending. Therefore, a tenant against whom a petition for eviction is pending, or who initiated proceedings against the landlord, should be careful enough in tendering or paying the rent due to his landlord as per the provisions of Section 10(2) of the Act. Respondents who obtained an order of deposit of rent in LA. No. 31 of 1989 in R.C. No. 35 of 1989 seem to be depositing the rents due into Bank through challans issued by Court as per the provisions of Rule 5 of the Rules. But the challans evidencing deposit into Bank are not regularly being filed into Court. Unless and until duplicate copy of the challan evidencing deposit of the money into the Bank is filed into Court amount deposited by the tenant into Bank will not be reflected in the ledgers maintained by the Court and consequently the landlord cannot have the benefit of amounts so deposited by the tenant, as he cannot withdraw the said amount. Only after the tenant files the challans evidencing deposit of money into the Bank into Court, would an entry be made in the ledger showing the amount to the credit of the R.C. Only when there is credit balance in the ledger of the Court would the Court issue a cheque in favour of the landlord.
11. Deposit of rent by a tenant into Court, as per the provisions of Section 8 of the Act, is for the benefit of the landlord, so that the landlord can withdraw the amount immediately after it is deposited. If the tenant who makes a deposit does not file the challans evidencing the deposit into the Bank into Court, the landlord cannot have the benefit of amount deposited by the tenant, and therefore it is as good as the tenant not paying the money to the landlord. Though Rule 5 of the Rules does not stipulate any time within which the tenant should file the challans evidencing the deposit of money in the Bank into the Court, by necessary implication it should be taken that he should file the challans into the Court within a reasonable time from the date of deposit. It is well known that where no time is stipulated for performing an obligation the person who has to perform the obligation has to perform it within a reasonable time. The tenant who deposits money into Bank, as per the order of the Court under Sections 8,9 and 11 is under an obligation to file the challans evidencing deposit of money in Bank, into the Court as per Rule 5(3) of the Rules. Rule 5 (4) of the Rules contemplates notice of deposit being given to the person(s) concerned within seven days of delivery of the challan by the tenant. If the tenant himself gives a notice to the landlord, or if the landlord is appearing through a Counsel to the Counsel for the landlord, there is no further need for the Rent Controller to serve notice of deposit on the landlord. If no such notice is given, the tenant has to deposit process fee for the Court to serve the notice of deposit on the person (s) concerned. If process fee is not deposited, the Court cannot serve notice of deposit on the landlord. In this case, admittedly, notice of deposit was not given to the landlord or his Counsel and it is not even the case of the tenant that process fee was deposited, as per Rule 16 for sending notice of deposit to the landlord. Thus it is clear that the tenant has not complied with the provisions of Rule 5(4) read with Rule 16 of the Rules, for the Rent Controller taking steps for service of notice of deposit on the landlord, because without the tenant depositing the process fee for service of notice, Court cannot cause service of notice of deposit on the landlord.
12. In Sekhar Chand Swami's case (1 supra) and Chittaranjan Ghosh's case (2 supra) while interpreting similar provisions in the Assam Urban Areas Rent Control Act, it was held that if the tenant fails to pay process fee along with notice copy for service of notice on the landlord regarding the deposit of rent into the Court, the tenant becomes a wilful defaulter, enabling the landlord seeking his eviction from the demised premises. Since the challans evidencing deposit of rent into bank from February, 1989 to August, 1989 (relating to rents from January 1989 to July 1989) were filed into Court only on 31-8-1989 without notice to the landlord, and since challans evidencing deposits of money (relating to rents) in September, 1989 and October, 1989 were filed into Court only on 15-12-1989, and since challans relating to deposits of money into bank made from November, 1989 to February, 1990 were filed into Court on 9-2-1990, challans evidencing the deposit of money into bank from March 1990 to July 1990 were filed into Court in August, 1990 the landlord was deprived of the opportunity to withdraw the amounts deposited by the tenant. Therefore it is as good or as bad as the tenant not paying the rent within time.
13. the R.C. was filed on 20-9-1990. So the question to be decided in this case is whether there was wilful default in payment of rent up to August, 1990 by the respondents. Ex.R-32 shows that the rent relating to the month of July, 1989 was deposited into the Bank on 5-8-1990 and the challans with bank endorsement were filed into the Court on 25-24992. Ex.R-15 relates to deposit of rent for the month of February, 1990. It shows that the amount was deposited into bank on 6-3-1990. Ex.R-16 relates to the rent for the month of March 1990. It shows that the amount was deposited into Bank on 6-4-1990. Ex.R-17 which relates to the rent for the month of April 1990, shows that the amount was deposited into Bank on 10-5-1990. Ex.R-18 relating to rent for the month of May, 1990 shows that the amount was deposited into Bank on 7-6-1990 and Ex.R-19 relating to rent for the month of July, 1990 shows that the amount was deposited into Bank on 10-7-1990. All the said challans were filed into Court on 10-8-1990 without notice to the revision petitioner. Therefore, it is as good as the tenant tendering rents from February 1990 to June 1990 on 10-8-1990 and rents from January 1989 to July 1989 on 31-8-1989, rents for August and September 1989 on 15-12-1989 and rents for October, 1989 to January 1990 on 9-2-1990.
14. When a tenant takes recourse to Section 8 of the Act for deposit of rents into the Court, he has to follow the procedure prescribed therein. If he fails to deposit challans into Court and give notice of deposit or fails to deposit process fee to enable the Court to cause service of notice of deposit on landlord for a considerably long time, it cannot but be held that he becomes a wilful defaulter, thereby creating a right in the landlord seeking his eviction from the demised premises on the ground of wilful default.
15. As stated earlier the Courts below erred in holding that there is no agreement regarding payment of rent between the parties when there is clear evidence of R.W.1 that rent has to be paid in advance on 10th of every month. The amounts deposited into the bank by the respondents (tenants) are not in accordance with the said agreement. Exs.R-2 to R-67 show that rents were deposited in the next month i.e., after the expiry of the due date fixed for payment - such deposit for a long time cannot but be taken as wilful default because no explanation is given by R.W.I for not depositing the rent before the date fixed as the grace period as per Section 10(2) of the Act. By reason of the failure of the respondents in depositing the challans into Court for a long time after deposit of money (rent) in Bank and for not issuing notice of deposit to him, the petitioner is deprived of the benefit of the money deposited and hence it is as good as the rent not being tendered till the challan is filed into Court and notice thereof is given to the landlord -which should be construed as 'wilful default' in payment of rent. Hence petitioner is entitled to seek eviction of the respondents on the ground of wilful default. For the above reasons, the orders of the Rent Controller and the appellate authority dismissing the petition for eviction filed by the revision petitioner are not sustainable and are liable to be set aside and are set aside.
16. In the result, Civil Revision Petition No. 614 of 1999 is allowed and consequently R.C. No. 676 of 1990 on the file of the Principal Rent Controller, Hyderabad stands allowed. The respondents are given time till the end of February, 2000 for vacating the premises. In the circumstances of the case, each party is directed to bear their own costs.