Andhra HC (Pre-Telangana)
Syed Abdullah vs G. Rajamani And Ors. on 6 July, 2005
Equivalent citations: 2005(5)ALD394, 2005(5)ALT117
ORDER P.S. Narayana, J.
1. Heard Sri B. Vijayasen Reddy, learned Counsel representing the revision petitioner and Sri P.V. Narayana Rao, learned Counsel representing the respondents 1 and 2.
2. The present civil revision petition is filed under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, hereinafter referred to, in short "the Act', for the purpose of convenience, against the order made in R.A.No. 163 of 2001 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad confirming the order made in R.C.No. 137 of 1998 on the file of III Additional Rent Controller, Hyderabad.
3. The petitioner herein is the tenant. Respondents 1 and 2 herein filed R.C.No. 137 of 1998 on the file of III Additional Rent Controller, Hyderabad on the ground of wilful default, bona fide requirement, subletting, acts of nuisance and causing damage. On behalf of the respondents 1 and 2 herein PW1 and PW2 were examined and Ex.P.1 to P. 10 were marked. On behalf of the revision petitioner and the third respondent herein RWs.1 and 2 were examined and Exs.R1 to R.10 were marked. Though, the other grounds were negatived, on the ground of wilful default eviction was ordered and aggrieved by the same, both the respondents in R.C.No. 137 of 1998 preferred R.A.No. 163 of 2001 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad and the said order was confirmed and aggrieved by the same, the first appellant in the Rent Appeal alone had preferred the present civil revision petition showing the second appellant as respondent No. 3 herein.
4. Sri B. Vijayasen Reddy, learned Counsel representing the revision petitioner would submit that in the light of the fact that a civil suit was filed, before expiry of the period for invoking the jurisdiction of the Rent Controller and if any default had been committed during that period the same cannot be taken as a ground under Section 10 of the Act and in view of the fact that there is some vagueness in the pleading relating to the specific period of wilful default, the findings recorded are vitiated. The learned Counsel also pointed out to Order 6 Rule 7 of the Code of Civil Procedure and would maintain that there is a departure of pleading when compared to the averments made in the eviction petition and the averments made in the pleading in O.S.No. 4756 of 1992. The learned Counsel would further submit that even if concurrent findings had been recorded on the ground of wilful default, inasmuch as, the aspects to be considered when the parties are governed by the general law, the provisions of Transfer of Property Act and the Rent Control legislation, being different, this aspect being a question of law, definitely can be raised even before the revisional Court and hence, the civil revision petition has to be allowed. Learned Counsel also placed reliance on the decision of the Apex Court in J.C. Chatterjee and Ors. v. Shri Sri Krishna Tandon, .
5. Per contra, Sri P.V. Narayana Rao, learned Counsel representing the respondents 1 and 2 would submit that the eviction petition was filed on 23-3-1998 and the plea taken in the prior suit was that the construction of the suit premises was in the year 1987-88. Even if the period of 10 years to be taken subsequent thereto also default had been committed by the petitioner. The learned Counsel also would submit that it is not in serious controversy that the rents were not paid. No doubt the stand taken is that the default period is for a period of 69 months. Learned Counsel also had taken this Court through the findings recorded by the learned Rent Controller and also the Appellate Authority and in all fairness would submit that as far as the other grounds are concerned the same had been negatived and on the ground of wilful default concurrent findings had been recorded. The learned Counsel also had brought to the notice of this Court the conduct of the tenant relating to non-payment of rent even after the filing of the eviction petition. The learned Counsel would further maintain that this aspect being clear from record, it can be taken into consideration and in the light of this conduct of the tenant, definitely it can be said that the ground of wilful default had been established. The mere fact that up to a particular period the jurisdiction of the Rent Controller cannot be invoked would not alter the situation in any way as far as the obligation on the part of the tenant to make payment of rent to the landlord. The learned Counsel also would comment that this obligation to pay rents on the part of the tenant cannot be treated on different footing, merely because the general law, the provisions of Transfer of Property Act 1882 would be applicable during a particular period. The learned Counsel placed reliance on decisions in Majoj Kumar Jain v. Lalchand Ahuja, , N.D. Thandani (Dead) by LRs. v. Arnavaz Rustom Printer and Anr., 2004 (1) ALD 29 (SC) = 2004 SC 495, Late Sri Gopisetty Shankaraiah and Ors. (Landlord) v. Ravi Co. and Ors., 2002 (1) An.W.R. 124 (A.P), Singumahanti Jagannadha Rao v. Putchala Surya Prakash Rao, 2002 Supp. (1) ALD 67 = 2002 (1) An.W.R. 204 (AP), Vallampati Kalavathi v. Haji Ismail, .
6. The mother and son are the owners of the property in question filed R.C.No. 137 of 1998 on the file of III Additional Rent Controller, Hyderabad. The revision petitioner herein-tenant obtained the property by way of lease to carry on business on a rental deed for a period of 11 months which had expired. As per the terms of the lease the tenant has to pay rent every month in advance on or before 4th of every month and the tenant did not pay rents for a period of 69 months from 4-5-1992 to 10-2-1998 amounting to Rs. 25,875/-. It is also stated that they filed O.S. No. 4756 of 1992 on the file of VII Junior Civil Judge, City Civil Court, Hyderabad for ejectment of tenant which was dismissed. During the pendency of the suit and subsequent thereto also he had not paid the arrears of rent. It was also stated that the tenant had sublet the premises and further the tenant and the sub-tenant are causing nuisance. The ground of damage also had been pleaded. The jural relationship was admitted by the tenant and the other judicial proceedings also had been admitted. It was also pleaded about O.S. No. 4756 of 1992 and Ramanatham filing O.S.No. 5273 of 1995 against the tenant and the alleged sub-tenant for the relief of permanent injunction restraining the alleged sub-tenant from interfering with peaceful possession of schedule property on the ground that both tenant and sub-tenant were trying to open a shop by break-open the lock put to the schedule premises and the said suit was also dismissed. Specific plea was taken that the tenant never committed wilful default in payment of rent from 4-5-1992 to 10-2-1998 during the pendency of O.S. No. 4756 of 1992 for the relief of recovery of possession, arrears of rent and damages. It is also stated that the Ramanatham did not insist the tenant for payment of rent for the said period till the date of disposal of the suit on 26-11-1997 which was filed under Transfer of Property Act terminating the tenancy issuing notice under Section 106 of the Transfer of Property Act, 1882. Therefore, the stand taken is that the nonpayment of rent during the pendency of O.S. No. 4756 of 1992 will not amount to wilful default in payment of rents. After dismissal of the suit the tenant contacted his advocate and requested to obtain certified copy of judgment and the same was obtained on 23-3-1998 and certain other subsequent events also had been narrated relating to what happened to the said proceedings. Even after the disposal of the suit, it is stated that they never issued any notice demanding rent and hence, the tenant had not paid rents. But all of a sudden he received notice in the eviction petition to his surprise. Therefore, there is no wilful default. As far as the other grounds are concerned, the said allegations had also been specifically denied.
During the course of enquiry before the learned Rent Controller PWs.1 and 2 were examined and Exs.P.1 to P.10 were marked. On behalf of the tenant, the tenant and the sub-tenant were examined as RW1 and RW2 and Ex.R.1 to R.10 were marked. The learned III Additional Rent Controller, Hyderabad framed the following points for consideration :
1. Whether the respondent No. 1 committed default in payment of rent for the period 4-5-1992 to 10-2-1998 at the rate of Rs. 375/- per month amounting to Rs. 25,875/-? If so whether that default is wilful?
2. Whether the petitioner's bona fide require the schedule mulgi for the personal requirement of the petitioner No. 2 to start and run his own pathological laboratory?
3. Whether the respondent No. 1 sublet the mulgi to the respondent No. 2 for running cycle stand business?
4. Whether the respondents committed acts of nuisance to the petitioners as alleged?
5. Whether the respondent completely damaged the schedule mulgi as alleged?
7. On appreciation of evidence as already referred to supra the eviction was ordered on the ground of wilful default only. The tenant and the alleged sub-tenant had carried out the matter by way of appeal in R.A. No. 163 of 2001 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad, wherein following points were framed by the appellate authority:
1. Whether the tenant committed default in payment of rent from 4-5-1992 to 10-2-1998 at the rate of Rs. 375/- per month amounting to Rs. 25,875/- if so, is it wilful?
2. Whether the requirement of the schedule premises for personal occupation of second landlord to start a pathological laboratory is bona fide, if so, the tenant is liable to be evicted from the schedule premises?
8. The Appellate Authority had answered the points for consideration and ultimately confirmed the finding relating to wilful default and consequently confirmed the order of eviction made by the learned Rent Controller. The evidence available on record had been appreciated by the learned Rent Controller and also the Appellate Authority. PW1 and PW2 in detail deposed about the institution of prior suit and the period of default and the default committed by the tenant and the other aspects. No doubt as already referred to supra the other grounds had been negatived. Exs.P.1 to P.8 are photographs and negatives. Ex.P.9 is the certified copy of judgment in O.S.No. 4756 of 1992. Ex.P.10 is the diploma certificate of second petitioner in the R.C. which had been relied upon to substantiate the bona fide requirement. As against this evidence, the tenant and subtenant were examined as RW1 and RW2. Ex.R.1 is unregistered partnership deed dated 10-9-1997. Ex.R.2 is the receipt dated 3-11-1999. Ex.R.3 is the certified copy of judgment in O.S. No. 4756 of 1992. Ex.R.4 is the certified copy of plaint in O.S. No. 5273 of 1995. Exs.R.5 to R.10 are positive photographs and negatives relating to the petition schedule premises.
9. On careful reading of the findings recorded the fact that the rents were not paid during the relevant point of time is not in serious controversy. In fact even in the counter, the tenant had taken the same stand, but had given an explanation. It was also pleaded that there was no demand for payment of rent. This stand taken by the tenant appears to be unreasonable for the reason that the tenant is under a duty and also under a legal obligation to pay the rents. The question which had been canvassed before this Court in elaboration is that though the landlords may be entitled to the recovery of arrears of rent by initiating a separate action the default for that period prior to the expiry of the required statutory period to invoke the jurisdiction of the Rent Controller, would not fall under wilful default. In other words, during the said period, the parties would be governed by the provisions of Transfer of Property Act, 1882 and not by the provisions of the Rent Control Act. This question need not detain this Court any longer for the reason that even at the earliest point of time, in the pleading specific stand was taken that the rents were not paid because there was no demand. Apart from this aspect of the matter, the conduct of the tenant clearly goes to show that the default committed by him even subsequent to the filing of the eviction petition is definitely wilful. The learned Counsel representing the petitioner contends that since the specific period of default subsequent to the expiry of the 10 years period had not been clearly pleaded in the eviction petition, he was deprived of an opportunity of taking appropriate defence and hence the same cannot be styled as wilful default. In the light of the conduct of the tenant, this Court is of the considered opinion that the said contention cannot be accepted.
10. Apart from this aspect of the matter, on a careful scrutiny of the respective pleadings of the parties and also the contentions advanced both before the learned Rent Controller and Appellate Authority, none of these questions had been raised and for the first time these questions are being canvassed before the revisional Court. Reliance was placed on a decision of the Apex Court in J.C. Chatterjee and Ors. v. Shri Sri Kishan Tandon, (supra) wherein it was held:
In a suit for ejectment of a tenant the plaint allegation as to termination of tenancy by a valid notice is neither denied nor any issue demanded thereon by the defendant, the point as to termination of tenancy being essentially one of law can be raised in second appeal and decided by the High Court without remanding the case.
This decision is distinguishable on facts. The learned Counsel representing respondents 1 and 2 placed strong reliance on V. Brahmachary v. Lakshminarayana, , wherein it was held that:
"The suit was filed for recovery of rent for the period September, 2000 to August, 2001. The relationship of landlord and tenant between the respondent and the petitioner is not in dispute. Proceedings were initiated against the petitioner for eviction. The petitioner, in turn, filed a suit for injunction against the respondent. That, however, is a different aspect altogether. The petitioner did not dispute that he has not paid the rent for the period referred to above. However, he pleaded justification for non-payment of the rent According to him, despite the order of temporary injunction and thereafter perpetual injunction, the respondent prevented him from enjoying the possession of the premises and in that view of the matter, he is not under obligation to pay the rent. Such a plea can never be accepted."
"The obligation to pay the rent flows from the existence of lease between the petitioner and the respondent. The obligation would cease only when such relationship comes to an end either through the acts of parties or orders of Court. Even a misdemeanor on the part of a landlord does not relieve the tenant of his obligation to pay the rents. Payment of rent being the sine qua non of a lease, a declaration by a tenant, of the intention not to pay the rents, by itself would bring an end to the lease."
N.D. Thandani (dead) by LRs. (supra) case wherein Apex Court observed that:
"The case at hand projects a picture where in spite of the leaning of the law in favour of the tenant, if anyone deserves sympathy it is the landlord and not the tenant. As already noticed, this is the third round of litigation complaining of default in payment of rent by the tenant. In the first round of litigation the rate of rent was alleged by the landlord to be Rs. 160/- per month which was denied by the tenant who pleaded the rate of rent to be Rs. 80/- per month only. In the litigation which ended in the Apex Court, the rate of rent was finally adjudged to have been Rs. 160/- per month and not Rs. 80/- as was pleaded by the tenant. Not only does the law itself require the tenant to pay or tender the rent month by month, the order of this Court mandated the tenant to clear all the arrears of rent within two months and thereafter to deposit the rent month by month and strictly observe compliance with the orders of the Supreme Court. The tenant did not even thereafter comply with the provisions of Rule 5. Huge amount of arrears accumulated, which were cleared in one go. Even other deposits were not regularly made. The tenant did not keep the landlords informed of the deposits either directly or by complying with the provisions of the Rule. The obligation of the tenant to pay or tender the rent cannot be said to have been discharged unless and until the landlord were posted, with the information along with particulars enabling them to withdraw the amount. The legal notices served by the landlords were not responded to in the desired manner so as to put an end to their grievance. A claim for eviction founded on the simple ground of default in payment remained pending for years, obviously because of the reluctance and the procrastinating tactics of the tenant If this is not 'wilful default' then what else can it be? We are clearly of the opinion that the High Court has rightly held the tenant to be a chronic wilful defaulter. The decree for eviction is fully justified."
"Before parting, and, in fairness to the learned Counsel for the parties, we may place on record a submission made on behalf of the appellant that in spite of the tenant having defaulted in payment of rent for any period prior to the institution of the suit, if the arrears have been cleared (though belatedly) and the landlord has accepted the same, the default, if any, stands wiped out and the cause of action for seeking eviction of the tenant based on the preceding default does not survive. Reliance was placed on a Full Bench decision of Andhra Pradesh High Court in Vinukonda Venkata Ramana v. Mootha Venkateswara Rao and Anr., . This decision takes notice of two decisions of this Court (both by two Judges Benches) reported as Dakaya alias Dakaiah v. Anjani, and K.A. Ramesh and Ors. v. Susheela Bal (Smt.) and Ors., . An earlier decision by a five Judges Bench of the Andhra Pradesh High Court, namely Pallapothu Narasimha Rao and Anr. v. Kidanbi Radhakrishnamacharyulu, , was brought to the notice of the Full Bench deciding Vinuikonda Venkata Ramana's case (supra) but the Full Bench commented that the five Judges Bench decision in Pallapothu Narasimha Rao and another (supra) is not good law because it fails to take note of the Supreme Court's decision in the case of Dakya alias Dakaiah (supra). The learned Counsel for the respondent pointed out that the five Judges Bench decision of Andhra Pradesh High Court in Pallapothu Narasimha Rao and another case (supra) is based on a Constitution Bench judgment of this Court in Mangilal v. Suganchand Rathi, , which was not noticed in the two Supreme Court decisions noted and followed by the Full Bench in Vinukonda Venkata Ramana's case (supra). The learned Counsel for the respondent further submitted that this Court should hold the decision of the Andhra Pradesh High Court in Vinjkonda Venkata Ramana's case not to be good law in view of the Larger Bench decision of that very Court in Pallapothu Namsimha Rao and another. The issue is substantial and we would have certainly gone into it but we find the present case is not an appropriate case for doing so. It is not the finding arrived at either by the Trial Court or by the High Court that the amount of arrears had stood paid by the tenant to the landlord prior to the initiation of proceedings for eviction by the latter.
The question of examining the effect of such payment does not, therefore, arise in the present case. On the contrary, the finding is that the tenant was and has continued to remain. In arrears up to the date of the initiation of the proceedings, and the only question arising for decision in the present case is whether the default can be said to be 'wilful' or not".
In a decision in Vallampati Kalavathi case (supra) wherein it was held that:
"As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expression 'legality' 'regularity' or 'propriety' are undoubtedly wider than mere correction of jurisdictional error. But even such revisional power cannot be exercised to upset the concurrent findings of fact recorded by the Forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the materials."
The learned Counsel placed reliance on a decision in Singumahanti Jagannadha Rao (supra) wherein it was held that:
"The Appellate Authority, while dealing with Ex.A.1 at Paragraph 8, had no doubt observed that the landlord having accepted the rent for the months of June, 1981 to July, 1982 without any objection, cannot take the plea that the tenant is a chronic defaulter in payment of monthly rents. Having observed so about the said period, relating to subsequent period at Paragraphs 9 and 10, the Appellate Authority had arrived at a conclusion that the tenant had committed wilful default. The observations made by the Appellate Authority in this regard at Paragraph 10 may be relevant for this purpose and which is follows:
"on perusing the entire evidence of RW.1/ tenant I find that the plea set up by him that he is regularly making payments of monthly rent to the landlord is untenable and his evidence is not trustworthy. Because according to RW.1 admittedly he deposited the arrears of rent into Court covering for the period from August, 1984 to September, 1985 that means the tenant has not paid the rent for the month of August, 1984 to the landlord. At one stage of his cross-examination R.W.1 admitted that he paid rent for the month of August, 1984 to the petitioner. At the same time he again says that he deposited the rent in Court. The above part of demeanor of the witness itself throws some doubt in his payments of rent regularly to the landlord. If really it is a fact that the landlord refused to receive rents for the months of August, 1984 and September, 1984 the tenant ought to have got the same mentioned in his counter filed by him before the Rent Controller Court. But R.W.1 at the same time clearly admits in his cross-examination that he did not get it mentioned in the counter filed by him before the Rent Controller Court that in spite of his offer the petitioner did not receive the rent for the months of August and September, 1984. From the above part of the admission made by RW.1 it can also be said that the evidence of R.W.1, tenant clearly admitted that he did not offer the rent to the petitioner in the month of October, 1984, even by Money Order. At another stage of his cross-examination R.W.1 admits that in spite of refusal by the Petitioner to receive rent for the months of August to October, 1984, he did not file any separate application to permit him to deposit the rent into Court. The above part of admission made by RW.1 also proves that he is a wilful chronic defaulter in payments of monthly rent. For the reasons stated above it is clear from the very evidence of R.W.1 that the tenant/ R.W.1 is a wilful defaulter in payment of monthly rents to the landlord.
"These findings of the Appellate Authority are based on evidence and also certain admissions made by R.W.1 himself. It is also pertinent to note that for sufficiently long time, certain irregular payment were made and at no point of time, there was any attempt on the part of the tenant either to raise any objection relating to the non-acceptance of rents or an attempt on the part of the tenant to follow the procedure contemplated under the Act. It is no doubt true that as far as passing of receipts is concerned, it may be that at certain times, the receipts had not been passed and taking this circumstance alone into consideration, one cannot infer that the conduct on the part of the tenant is justified so as to protect him from being evicted on the ground of wilful default. In the light of the detailed discussion by the Appellate Authority on the aspect of the wilful default for the subsequently period i.e., after July, 1982, the findings of the Appellate Court in this regard cannot be said to be preserve in any way, but based on the material available on record, Exs.A.1 to A.6 and also the evidence of PW1 and certain admissions made by RW.1 himself coupled with the evidence of R.W.2. Hence, in my considered opinion, the Appellate Authority is justified in reversing the finding of the learned Rent Controller as far as the ground of wilful default is concerned. Hence, I do not see any reason to interfere with the order of eviction made by the Appellate Authority on the ground of wilful default. It is needless to observe that as far as bona fide personal requirement is concerned, both the Courts have negatived the said ground and the same cannot be disturbed at the stage of revision."
The learned Counsel placed reliance on another decision in Late Sri Gopisetty Shankaraiah and others (supra) wherein it was held that:
"It is not in dispute that the 1st petitioner was the owner of the premises in question and after his death the other petitioners became absolute owners and respondents 2 to 6 have been carrying on business in the name of the 1st respondent in the said premises on monthly rents of Rs. 400/-. The contention of the petitioners is that the respondents committed wilful default in payment of rents from November, and December, 1991 to January and February, 1992 and the contention of the respondents is that they had tendered the rents to the 1st petitioner and the 1st petitioner refused to receive the rents and they had issued notice calling upon him to specify a bank to enable them to deposit the rents into his account and even after receipt of notice since the 1st petitioner had not given any reply, then they had remitted the rents by way of Money Order and the same was accepted by the 1st petitioner and hence there are no arrears of rents. The rent was received by the 1st petitioner on 3-4-1992. In the counter also the respondents pleaded that they had remitted the rent for the months of November 1991 to March, 1992 by Money Order dated 3-4-1992 and the same was received on 3-4-1992 and the eviction petition was filed on 27-3-1992. Hence, the rent from November, 1991 to March, 1992, according to the respondents, was paid on 3-4-1992 i.e. subsequent to filing of the eviction petition and hence, it can be said that the rent was not tendered within time and that was the finding recorded even by the Rent Controller after appreciating both the oral and documentary evidence. Apart from this, there is no evidence to show that the respondents had send the cheque towards the rents for November and December 1991 and hence, in the light of the evidence of P.W.1 in this regard, the Appellate Authority reversing the finding relating wilful default observing that by the date of filing of the eviction petition the rents were received by the landlords cannot be sustained."
11. There cannot be any serious doubt or controversy that since there is no perversity in recording the findings and material evidence had been appreciated properly, in view of the limitations the revisional Court normally not to interfere with concurrent findings recorded by both the Courts below and also in the light of the conduct of the revision petitioner and taking into consideration the overall facts and circumstance and inasmuch as these pleas are being canvassed before the revisional Court for first time, this Court is of the considered opinion that the concurrent findings recorded by both the Courts below need not be disturbed and the said findings are hereby confirmed. It is needless to say that the civil revision petition is devoid of merits and accordingly the same shall stand dismissed. It is represented that the tenant is running some business, in view of the same, four months time is granted to vacate the petition schedule premises. The tenant shall file an undertaking before this Court within two weeks from the date of receipt of a copy of this order, in default the landlords are at liberty to put the eviction order into execution. It is needless to say that tenant to pay rents for this period too.
12. Accordingly, the civil revision petition is dismissed with the above directions. No costs.