Telangana High Court
Tuljaram Yadav vs Sundermal on 19 October, 2022
Author: M.Laxman
Bench: M.Laxman
THE HON'BLE SRI JUSTICE M.LAXMAN
CIVIL REVISION PETITION Nos. 2138 AND 2165 OF 2001
COMMON ORDER:
1. This order disposes of both the revision petitions, since the subject matter involved in both the revisions is one and the same.
2. C.R.P. Nos.2138 and 2165 of 2001 are directed against the common orders dated 20.11.2000 in R.A.Nos.168 and 167 of 1997 respectively, on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad (for short, Rent Control Appellate Authority), whereunder orders dated 31.03.1997 in R.C.Nos.21 and 389 of 1994 on the file of the II Additional Rent Controller, Hyderabad (for short, Rent Controller), were reversed.
3. The petitioner in both the Civil Revision Petitions is the landlord and the respondent in both the Civil Revision Petitions is the tenant. For the sake of convenience, the parties are referred to as 'landlord' and 'tenant'.
4. Initially, both the rent control applications i.e., R.C.Nos.21 and 389 of 1994 filed by the landlord were allowed in part and accordingly, eviction of the tenant was ordered by the Rent Controller by accepting the grounds of willful default in payment 2 of rent, securing alternative accommodation and change of usage of premises while denying the other grounds. Aggrieved by the same, the tenant filed appeals vide R.A.Nos.167 and 168 of 1997 and the landlord also filed cross-objection in R.A.No.168 of 1997. The Rent Control Appellate Authority allowed the appeals filed by the tenant and dismissed the cross-objection filed by the landlord. Aggrieved by the same, the landlord has preferred these present revision petitions. However, there was no challenge to order of dismissal of cross-objection filed by the landlord.
5. The sum and substance of the case of the landlord is that he is the owner of premises bearing No.21-2-10, situated at Pathergati, Hyderabad, comprising of ground and first floors. Originally, the tenant was also the tenant of the predecessor-in- title of the landlord, and after purchase of the subject property by the landlord, the tenant continued his tenancy. The rent payable on the date of filing of the rent control applications was Rs.410/- per month. There was a written agreement in between the landlord and the tenant under Ex.P-1 dated 10.11.1974. As per the terms of the said rental deed, the original tenancy was for eleven (11) months and subsequently, the tenancy was continued on monthly basis. The original rental deed contains 3 the condition that the rent shall be paid on or before of 5th of every succeeding month.
6. The rental deed also contains the condition that the ground floor shall be exclusively used by the tenant for cloth shop; the first floor shall be used for residential purpose; and the tenant shall not change the usage of the rental premises for the purpose for which he obtained. According to the landlord, the tenant is the willful defaulter; he was not paying the rent regularly and he was intermittently paying the rent; he changed the usage of the property; he secured alternative accommodation; he committed nuisance; there was act of waste; and the premises was also required for the personal use of landlord.
7. The default period of rent in R.C.No.21 of 1994 is from October, 1993 to January, 1994 and the default period in R.C.No.389 of 1994 is from February, 1994 to June, 1994. Originally, the landlord filed R.C.No.21 of 1994 and subsequently, he filed R.C.No.381 of 1994 in respect of default committed by the tenant in payment of rents subsequent to filing of first rent control application i.e., R.C.No.21 of 1994.
8. The case of the tenant is that he has admitted the jural relationship between them and also the rent payable. However, 4 he denied the averment that he is the willful defaulter. It is his contention that there was a practice of paying the rental amounts for every six (6) or eight (8) months. There was no practice of paying the rent every month and such practice was developed at the convenience of the landlord. The tenant also claimed that he did not change the usage of the premises; he has not secured any alternative accommodation; there was no nuisance or act of waste by him; and the landlord was not in requirement of the premises for personal use. It was also claimed by the tenant that in the month of November, 1993, when the representative of the landlord approached him for rent, he offered to pay the rent for the months from October, 1993 to March, 1994 by way of cheque bearing No.044142, dated 06.11.1993 drawn for an amount of Rs.2,460/-, but the representative of the landlord refused to accept the same. In such circumstances, the tenant sent the said cheque through registered post and the same was received by the landlord on 02.12.1993 and hence, there was no willful default on his part.
9. It is the further case of the tenant that there was no willful default on his part in payment of rent for the period from February, 1994 to June, 1994, for the reason that he has issued the above said cheque for payment of rent from October, 1993 to March, 1994. Subsequently, he filed an application seeking 5 permission from the Rent Controller to deposit the rent amounts. The landlord also filed applications before the Rent Controller seeking a direction to the tenant to deposit rent. According to him, after such applications were allowed, he deposited the rent, as such, there was no willful default on his part.
10. On the basis of the above pleadings, the Rent Controller framed the following points for consideration:
"1) Whether the respondent has committed default in payment of rent for the period from October, 1993 to January, 1994 amounting to Rs.1,640/- and if so, the same is willful?
2) Whether the respondent has committed nuisance as alleged by the petitioner?
3) Whether the respondent damaged the property by opening a door in between the schedule premises and the premises No.21.2.10?
4) Whether the respondent has changed the use of mulgi for which it was let out?
5) Whether the respondent has secured alternative accommodation as alleged by the petitioner?
6) Whether the respondent has ceased to occupy the schedule premises?
7) Whether the petitioner bona fide requires the petition scheduled premises for doing his business?
8) To what relief?"
11. The landlord, to support his case, examined P.Ws.1 to 3 and got marked Exs.P-1 to P-25. The tenant, in support of his 6 case, examined R.Ws.1 and 2 and got marked Exs.R-1 to R-23.
The Rent Controller also got marked Exs.X-1 and X-2 and Ex.C-1.
12. The Rent Controller, basing on the evidence on record, found that the landlord established the case of willful default, change of usage of subject property and availment of alternative accommodation by the tenant. However, the Rent Controller rejected the claims of the landlord with regard to nuisance, acts of waste and personal requirement. Consequently, the Rent Controller ordered for eviction of the tenant from the subject property. Aggrieved by the same, the tenant preferred appeals i.e., R.A.Nos.168 and 167 of 1997 and the landlord has preferred cross appeal in R.A.No.168 of 1997. The Rent Control Appellate Authority has allowed both the appeals filed by the tenant and reversed the orders of eviction passed by the Rent Controller and dismissed the cross-appeal of the landlord. Hence, the present revision petitions at the instance of the landlord and there is no revision challenging the dismissal of cross-appeal. Therefore, this Court is confined to the grounds of the landlord in rent appeals filed by the tenant.
13. Heard the learned counsel for the petitioner. In spite of several adjournments, there is no representation for the 7 respondent/tenant. Today also, in spite of the matter is listed under the caption 'for pronouncement of orders' expecting the arguments from the respondent, there is no representation for the respondent. Therefore, the arguments of the respondent are treated as nil.
14. The contention of the learned counsel for the petitioner/landlord is that the Rent Control Appellate Authority has not properly appreciated the default period and the procedure contemplated for payment of rent, when the landlord refuses to receive the rent. If the tenant really made genuine efforts to make payment of rent, he should have resorted to the procedure contemplated under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, Rent Control Act), when the landlord refused to receive the rent. It is also submitted that the Rent Control Appellate Authority has not properly appreciated the factual aspects with regard to default of rent period from October, 1993 to January, 1994. According to him, till date tenant has not paid or deposited the rent in respect of period covering from October, 1993 to March, 1994.
15. Learned counsel for the landlord has also contended that the Rent Control Appellate Authority has reversed the grounds eviction with regard to change of usage of first floor premises on 8 the ground that the tenancy is a composite one. If this finding of the Rent Control Appellate Authority is accepted, when the change of use of one part of the building is violated, automatically other part of the building if it is composite tenancy, requires to be evicted. It is also contended that the Rent Control Appellate Authority has not properly appreciated the grounds of tenant with regard to securing the alternative accommodation, in spite of best available evidence on record, particularly electoral roll (voter ID) card. In the rent control cases and the appeals, the tenant has not shown the present suit premises as his residential address, but shown some other premises. This clearly establishes that the tenant has already secured alternative accommodation for residential purpose and he was using the first floor of the subject premises for commercial purpose. Had this evidence was properly considered, the Rent Control Appellate Authority would not have rendered such findings. According to him, the findings of the Rent Control Appellate Authority suffer from irregularity.
16. The evidence demonstrates that there was refusal from the landlord. According to the tenant, such refusal was in the month of November, 1993. The evidence also establishes that the tenant has sent a parcel to the landlord by registered post and the landlord received the said letter. According to the landlord, 9 he has not received such parcel, but the evidence demonstrates that he received the same.
17. Now the question is even if the said parcel is received, whether sending of rent in such a manner when the landlord refused to receive the rent, complies the requirement of the Rent Control Act?
18. In this regard, it is apt to refer to Section 8 of the Rent Control Act, which reads as under:
"8. 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 as aforesaid the tenant shall deposit the rent in the bank and shall continue to deposit in it 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 10 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."
19. A glance on above provision makes it clear that if a landlord refuses to receive rent, the Act requires that the tenant must address a letter to the landlord seeking information of bank details in order to deposit such rent. If the landlord fails to furnish the bank details, the tenant has to forward the rent by way of money order. If the landlord refuses to receive the money order also, the tenant has to make an application under Section 8 (5) of the Act to permit him to deposit the said rent before the Rent Controller.
20. Admittedly, in the present case, this procedure was not adopted by the tenant. It is also not the case of the tenant that the cheque issued by him was encashed till the date of filing of rent control case for willful default for the period covering from October, 1993 to January, 1994. It is also not in dispute that 11 the tenant has not deposited such a rent before the Rent Controller, even after filing of the rent control case by the landlord on the ground of willful default period covering from October, 1993 to January, 1994. It is to be noted that when the Act prescribes a particular mode of procedure in case of landlord refuses to receive rent from the tenant, the tenant is required to follow such a procedure. If such a procedure is not followed, the tenant has to establish that the parcel which he has sent was containing the cheque.
21. The evidence on record from the tenant's side only demonstrates that the parcel was sent to the landlord by registered post. It is not known whether such parcel contains any cheque or not. Further, the tenant has not produced any counter-foil of the cheque, so as to indicate that he actually drew the cheque which he has claimed to have sent to the landlord. However, as per Section 8 of the Rent Control Act, the tenant had to forward the rent by way of money order, but not by way of registered post as the money order ex facie contains the money.
22. In the present case, such a procedure is not adopted. Unfortunately, when the landlord claimed that he has not received the cheque, at least the tenant should have deposited 12 the rent immediately after the landlord filed application for recovery of rent covering for the period from October, 1993 to January, 1994. However, till date, he has not deposited any rent for the period covering under the alleged cheque issued by him to the landlord. However, receipt of such a cheque was not admitted by the landlord.
23. These aspects were not considered by the Rent Control Appellate Authority in reversing the findings of Rent Controller with regard to the willful default of rent period covering from October, 1993 to January, 1994. The Rent Control Appellate Authority also considered the practice of payment of rent for every six (6) or eight (8) months. No doubt, the evidence on record like Exs.R-1 to R-10 demonstrates that the landlord had been issuing consolidated receipts for six months, but some receipts show payment of advance rent and some receipts show payment of amount for completed rent period.
24. In the present case, when there was a practice of paying rent for every six (6) or eight (8) months, admittedly the tenant has paid the rent upto September, 1993. If such was the practice, there was no need of the representative of the landlord approaching the tenant in the very first month of the rent due 13 and the landlord drawing the cheque for six months including the advance months of November, 1993 to March, 1994.
25. It is to be noted that even though there is a practice, when the said practice was disregarded by the landlord and refused to receive the rent, the tenant should have tendered the payment of rent in terms of the procedure contemplated by the Rent Control Act. But, such a procedure is not adopted by the tenant. Therefore, the Rent Control Appellate Authority has committed error in this regard.
26. With regard to willful default for the period from February, 1994 to June, 1994 covered under the second rent control case, the Rent Control Appellate Authority has rightly held that when the tenant did not deposit the rent even after filing the eviction petition on the ground of willful default, the course open for the landlord is to file an application seeking a direction to the tenant to deposit the rents before the Rent Controller. If the tenant failed to comply with such a direction, the landlord should have asked for forfeiture of the defence of the tenant in the rent control case. Such a procedure is not adopted. Instead landlord filed separate rent control case for the willful defaulted period subsequent to filing of earlier rent control case. In this regard, I 14 did not find any irregularity or illegality in the findings of the Rent Control Appellate Authority.
27. With regard to the finding of the Rent Control Appellate Authority on the change of usage of the premises, undisputably Ex.P-1 clearly demonstrates that the ground floor shall be exclusively used for cloth business and the first floor shall be used for residential purpose. Both the Courts below have accepted the evidence produced by the landlord with regard to continuing the commercial activity in the first floor. However, the Rent Control Appellate Authority reversed the finding of the Rent Controller in this regard only on the ground that the tenancy is the composite tenancy. Even this proposition of composite tenancy is to be accepted, the composite tenancy contains two premises i.e., the ground floor and the first floor and the usage of both the floors is specifically mentioned. If usage of one premises is changed, it automatically terminates the entire tenancy, if it is a composite one. If this principle is to be accepted, even though the usage of ground floor is not changed, but the usage of the first floor is changed, such change disentitles the tenant to continue his tenancy in the ground floor also. The evidence clearly demonstrates that the tenant has changed the usage of premises by shifting his residential 15 premises from first floor and converting it into commercial activity.
28. The Rent Control Appellate Authority has also reversed the finding of the Rent Controller with regard to securing alternative accommodation. The evidence placed by the landlord, more particularly voter ID card, cause title of plaint in O.S.No.311 of 1994 and affidavit in R.C.No.21 of 1994, clearly demonstrates that the tenant and his family members are not residing in the first floor of the subject premises. This clearly shows that the tenant has secured alternative residential accommodation. When one part of the composite tenancy premises is put to disuse by securing alternative accommodation, both the premises require to be vacated. This aspect was also not rightly considered by the Rent Control Appellate Authority in reversing the findings of the Rent Controller. Hence, the findings of the Rent Control Appellate Authority suffer from illegality.
29. In the result, C.R.P.No.2138 of 2001 is allowed setting aside the order dated 20.11.2000 in R.A.No.168 of 1997 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad and confirmed the order dated 31.03.1997 in R.C.No.21 of 1994 on the file of the II Additional Rent Controller, 16 Hyderabad. C.R.P.No.2165 of 2001 is dismissed, confirming the order dated 20.11.2000 in R.A.No.168 of 1997.
_______________ M.LAXMAN, J Date: 19.10.2022 GVR/TJMR