Andhra HC (Pre-Telangana)
Mohd Afzal vs Common Wealth Hotel Pvt. Ltd. ... on 19 March, 1991
Equivalent citations: 1991(3)ALT325
ORDER P.L. Narasimha Sarma, J.
1. Heard both the counsel and they agreed that the C.R.P. itself can be disposed of finally.
2. Plaintiff is the Revision Petitioner. Revision was preferred against the order of the learned IV Additional Judge, City Civil Court, Hyderabad dismissing I.A. 1077/88 in O.S.No. 1426/87. The application was filed under Section 151 C.P.C. seeking a direction to the respondent to deposit the entire arrears of rent and also to continue to deposit every month. The application was filed on the ground that the defendant is the tenant and that the plaintiffs are its landlords. It is stated that the rent payable by the tenant is Rs. 10,000/- per month and that the respondent is enjoying property without paying a single paise towards rent and the arrears of rent accrued as on the date of filing of application was more than Rs. 2.00 lakhs and therefore the application was filed for the reliefs mentioned above. The main suit itself is for recovery of possession of the demised property.
3. The respondent resisted the application on the ground that it is not maintainable under law and that on the pretext of attachment, the plaintiff got the entire premises closed and sealed and thereby denying the opportunity to the tenant to enjoy the premises as a lessee and possessor and therefore there is a suspension of payment of rent and he is not liable to pay any rent.
4. The learned trial judge dismissed the application on the ground that in the earlier suit filed for recovery of arrears of rent, attachment was obtained by the landlords and the premises was attached and sealed disabling the tenant from running the hotel. The learned judge also observed that it is for the petitioner-plaintiff to see that the respondent is allowed to do the business in the premises paying the rent or to vacate the premises by early disposal of the suit. Questioning the said order plaintiff preferred this Revision.
5. It is admitted that the petitioner is the landlord and the respondent is their tenant. It is also fairly admitted that the rent for the premises on question is Rs. 10,000 (though mentioned as Rs. 6,000/- as rent and Rs. 4,000/- for fixtures). The suit itself is one for the recovery of possession of the premises, filed by the landlord. There is one other suit filed by the landlord claiming arrears of rent i.e., OS .No. 877/87 which is pending on the file of the II Additional Judge, City Civil Court, Hyderabad. The tenant is bound to pay the rent every month in accordance with the agreement. The only plea that is raised by the tenant is that there is suspension of payment of rent during this period and in support of the said contention invoked Clauses (b) and (c) of Section 108 of T.P. Act. The counsel for the tenant relied upon the decisions reported in V. Basu v. Nilima, and Ahmed Maracair v. Mathu Villiappa, . According to him the landlords obtained attachment before Judgment in I.A. No. 999/87 in O.S. 877/87 and attached all the moveables including the premises. The order of attachment disabled the tenant from running the business which amounted to dispossession of the tenant from the premises. In view of the above, there will be suspension of payment of rent for the premises and therefore the order of the Trial Court is correct. The petitioners counsel pleaded before me the order of the II Additional Judge. City Civil Court in I.A.No. 301/ 88 in I.A.No. 2155/87 in O.S. No. 877/87 to the effect that the attached articles were released on the petitioner furnishing security for suit claim to the satisfaction of the court. Petitioner there is the tenant. The Order is dated 7-12-1989.
6. In the decision N. Basu v. Nilima (1 supra) the tenant pleaded that he was dispossessed from the first floor of the premises under the threat of Criminal Prosecution and coercion by the Vendor of the plaintiff with the help of Howrah Municipality and until the tenant is put in possession thereof, there will be suspension of payment of rent. It was also contended in the said case by the tenant that his dispossession from the premises was high handed and the landlady is not entitled to claim any right from not allowing the tenant from holding the entire premises peacefully. The learned judge who decided the said case considered that aspect and held as follows: -
"The principle is that in a case where the landlord dispossess his tenant from any portion of the leased property by exercising physical force, coercion, threat or any other trick or means or any fraudulent or mala fide process against the wish or will or natural inclination of the later or where the landlord connives with or assists others directly or indirectly to dispossess the tenant or does something which is responsible for the dispossession of the tenant from any portion of the tenancy or by his acts or omission leads the tenant to part with possession of any portion of the property in lease against his will of consent or the property in lease s will or consent or depriving him of the benefit or use of such property, the tenant so dispossessed shall be entitled to suspension of the entire rent if he does not get back the portion from which he is dispossessed".
In the other case i.e., Ahmed Mahacair v. Muthuvalliappa (2 supra) it is stated that interference with the quiet enjoyment of the lessee of the demised land under the lesso need not be by physical possession. According to the contention, the Order of attachment passed by the Court had the effect of preventing him from quiet enjoyment of the demised premises and therefore entitled to have the suspension of payment of rent.
7. In the present case, the ingredients mentioned above are not satisfied prima facie according to law. These are the matters which can only be decided after the entire evidence is recorded and a finding is arrived at by the court below. Prima facie there is no physical dispossession of the tenant by the landlords. The ingredients mentioned in the case N.Basu v. Nilima (1 supra) are not satisfied at all. It is for the tenant to prove that these ingredients are satisfied in the present case to claim the suspension of the payment of rent. However, according to the landlord, there are arrears of rent due from the tenant. It is open to him to approach the court for proper reliefs viz., for recovery of arrears of rent. In such a proceeding, it is equally open to the landlords to file an application for attachment to secure the decree that may be passed ultimately. It is for the court to pass an order. It cannot be said that the order passed by the court in accordance with law has the effect of deprivation of the demised premises at the instance of the landlords. Even otherwise, the order dated 7-12-1989 raising the attachment subject to the condition that he furnishes security discloses that even the said attachment was raised. Therefore, even on 7-12-1989 itself, at the instance of the tenant and on the consent of the landlord, the court passed an order raising the attachment allowing the tenant to take away moveable property on furnishing security. In my opinion the act complained of does not amount to dispossessing the tenant from the premises by use of physical force, coercion, trick or by other means. The only other objection raised is with regard to the attachment. The order of attachment was issued by the court, may be at the instance of the party, but the court is satisfied with the ingredients of Order 38 Rule 5 C.P.C. and an attachment order was issued. When the tenant approached the court for raising the attachment, it was raised by an order dated 7-12-1989 on condition that he furnishes security. Therefore, I am not, prima facie satisfied that by any high handed or mala fide means, or trick or by other means the landlord deprived the tenant of the portion of the demised premises. It is admitted that the rent was not paid during the pendency of the proceedings and that the act of nonpayment of rent is sought to be supported by the theory of suspension of payment of rent Having regard to the fact and circumstances of the case, to secure the interest of the parties, I have no hesitation in directing the tenant to pay the rent which he is bound to pay but for the contention raised. Any observation or any finding recorded by me in these proceedings are only prima facie finding. It is open to the parties to adduce evidence and prove their respective cases at the time of the disposal of the suit. A tenant, in my opinion should not be allowed to continue in possession without payment of any rent. It is his duty to pay the rent, subject to any rights that he may claim for suspension of the payment. The order of the lower court is set aside and the respondent-tenant is directed to deposit the rent at the rate of Rs. 10,000/- per month with effect from 1-1-1990 i.e., for the period subsequent to the raising of the attachment in I.A.No. 301/ 88 and I.A.N0.2155/87 dated 7-12-1989 till 28-2-1991. That means, the respondent tenant is directed to deposit a sum of Rs. 1,40,000/- within a period of three months from today. The respondent-tenant shall continue to pay the rent every month at the same rate of Rs. 10,000/- w.e.f. 1-3-1991. The rent of March 1991 shall be paid on or before 10-4-1991 and the rent of each month shall be paid by the 10th of every succeeding month pending disposal of the suit. The landlords are entitled to withdraw the amount so deposited or furnishing bank guarantee to the satisfaction* of the Trial Court. The suit shall be disposed of by the Trial Court on the evidence on record on its own merits and in accordance with law without in any way being influenced by the observations made in this order.