Bombay High Court
M/S. Shrikrishna Oil Mill vs M/S. Radhakishan Ramchandra ... on 5 February, 1999
Equivalent citations: 2000(2)BOMCR759, 2000(2)MHLJ644
Author: S.B. Mhase
Bench: S.B. Mhase
ORDER S.B. Mhase, J.
1. This is a revision application under section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 challenging the orders passed by the Rent Controller, Latur in Case No. 1982/R.C.A./O/ 1 decided on 21st January, 1988 and of the District Judge, Latur, in Rent Appeal No. 3 of 1988 decided on 21-6-1989. By these proceedings the petitioner tenant has been directed to vacate the godown premises bearing Municipal No. 162/163/9 situated at Zinganappa Galli, Latur.
2. The petitioner is a tenant of the premises Municipal No. 162/163/9 situated in Zinganappa Galli, Latur and the respondent is the landlord. These premises were rented out initially at the rent of Rs. 1500/- for the period of one year to locate the Oil Mill of the petitioner firm. That agreement is not on record and which is the year in which the said agreement was effected that is also not on record. But however, both the parties agreed that such an agreement was there. The respondent landlord therefore has made out a case that after the period of the said agreement is over as there was no fresh agreement of tenancy, the petitioner continued to be in possession of the said godown as a statutory tenant and that tenancy therefore is monthly tenancy. It is further stated that the rent from 1-11-1978 and ending for the period 29-9-1981 amounting to Rs. 4250/- was not paid by the petitioner, and therefore, the petitioner has become defaulter so that the respondent is entitled to get the possession of the said premises. Thus the only ground on which the possession has been sought by the respondent landlord is that the petitioner is a defaulter as stated under section 15(2)(i) of the said Act. As against this the defence of the petitioner tenant is that even though the tenancy was yearly but the period of lease or tenancy was not fixed and therefore, the tenancy was yearly tenancy and the petitioner was not bound to pay the rent on monthly basis. It is further stated that the amount of Rs. 4250/- which was due has been deposited by the present petitioner tenant on the next date of the appearance in Regular Civil Suit No. 482 of 1981 by the landlord before the Rent Controller, and therefore, the petitioner tenant was not a defaulter, and therefore, the proceedings were misconceived.
3. The facts which are proved in this matter and in respect of which there is no dispute are as follows:
(i) that the petitioner tenant was inducted for the first time on yearly basis and the rent of the premises fixed was Rs. 1500/- for the year.
(ii) that the initial period of agreement is over, no fresh agreement was executed in between the parties in respect of the tenancy,
(iii) The rent payable was Diwali to Diwali.
(iv) that the rent from 1-11-1978 to 29-9-1981 was due from the petitioner tenant as claimed in Regular Civil Suit No. 482 of 1981 and that amount has been deposited by the petitioner tenant in the month of October, 1981 after his appearance in the said suit. Thus the rent for a period 1-11-1978 to 20-10-1979 (year Diwali to Diwali) and from 21-10-1979 to 7-10-1980 (year Diwali to Diwali) and 8-10-1980 to 29-9-1981 (Diwali to Diwali) was shown to have been due and defaulted on the date of the presentation of the application.
(v) that Regular Civil Suit No. 482 of 1981 was decreed in respect of the payment of Rs. 4250/- by the petitioner tenant and ultimately Darkhast No. 42 of 1983 was filed for recovery of Rs. 1353-79 Ps. including the rent found due and interest and the costs of the suit etc.
(vi) that Regular Civil Suit No. 7 of 1983 was filed on 18-1-1983 and decreed on 26-6-1984 and Execution Petition No. 3 of 1985 was filed for the recovery of Rs. 938-16 Ps. even though the initial suit was for Rs. 2000/-.
(vii) Regular Civil Suit No. 19 of 1984 was filed on 27-1-1985 and so also Regular Civil Suit No. 64 of 1985 was filed on 15-4-1985 and decreed on 11-12-1987 and the amounts of those decrees are recovered by filing Execution Petitions. All these suits were filed for recovery of the rent.
4. The learned Counsel Shri A.B. Bajpai, appearing for the petitioner submitted that the case that the initial agreement period of one year is over is not submission in accordance with the law and he further submitted that once that tenancy is yearly tenancy, the tenancy continues to be yearly tenancy, even though the period for which it is agreed is over or elapsed the tenancy continues to be yearly and it will not come to an end by efflux of time because the provisions of the Transfer of Property Act are not at all applicable and the landlord in that eventuality is not entitled to ask for possession of the premises. He further submitted that the application filed for possession of the premises is misconceived because Regular Civil Suit No. 482 of 1981 was filed on 11-8-1981 and that the petitioner has deposited the amount of Rs. 4250/- as per the summons issued in the said suit on 7-10-1981 and thereafter the present eviction petition under section 15 has been filed on 25-11-1981 and therefore on the date when the application was filed the rent was not due and thereafter the rent due was paid by the petitioner tenant and therfore, there was no default and much less a wilful default. He stated that on the date of the application for the eviction of the present petitioner, there was no default and therefore, the application should have been rejected by the authorities under the said Act. He further made a grievance that the reliance placed on the decree passed in R.C.S. No. 783 of 1984 and 64 of 1995 is not in accordance with law because all those suits have been filed pending the application for eviction and that material cannot be considered to decide whether the petitioner was a wilful defaulter on the date when the application was presented.
5. As against this submission made by the learned Counsel for the petitioner. Mr. Bora, learned Counsel appearing for the respondent landlord submitted that the tenancy which at the inception was yearly after the lapse of the period for which it was agreed, in the absence of any agreement stands converted into a monthly tenancy and therefore, the tenant petitioner will be governed by the second half of Clause (i) of sub-section (2) of section 15 of the said Act i.e. " in the absence of any such agreement by the last day of the month next following that for which the rent is payable" and therefore he submitted that there were several defaults committed on month to month basis from 1-11-1978 to 29-9-1981 and therefore, the petitioner was a wilful defaulter. He further submitted that Regular Civil Suit No. 7 of 1983 and Regular Civil suit No. 64 of 1985 including Regular Civil Suit No. 482 of 1981 have been decreed by the Civil Court from time to time and even though some of the payments were made by the petitioner ultimately the decrees were passed for the arrears of the rent in all these suits and that the amounts decreed have to be recovered by the landlord by filing the Execution Proceedings. This conduct of the petitioner tenant shows that he was a defaulter and that he was a wilful defaulter, otherwise moment the proceedings initiated and started the tenant should have deposited the rent regularly as required under the provisions of the law and thereby could have pointed out that during the pendency of the proceedings he has regularly paid the rent. On the contrary his conduct is not in consonance with the tenant who is not a wilful defaulter in payment of the rent regularly as required under the law and therefore ultimately learned Counsel submitted that the respondent landlord has proved the case of wilful default by the tenant and the findings recorded by both the courts below are just and proper and requires no interference at the hands of this Court. These finding being concurrent it will be improper to disturb them.
6. Mr. Bora, learned Counsel for the respondent landlord has also made another submission that if his submission of the converting the tenancy into monthly tenancy is not accepted by the Court, alternatively he submitted that even assuming that the tenancy was yearly tenancy, the rent which was defaulted was for the period from 1-11-1978 to 20-10-1979 and 21-10-1979 to 7-10-1980 (on Diwali to Diwali basis) and thereby two years consistent defaults were committed by the petitioner tenant and therefore he was a wilful defaulter and was liable to be evicted from the said premises.
7. The first point which requires to be dealt with is what is the consequence of lapse of the period of lease or the period of tenancy initially fixed by the parties. This controversy has arisen because initially the petitioner tenant was inducted into the godown premises on yearly tenancy of Rs. 1500/- for a period of one year and thereafter the petitioner continued to be in possession of those premises without further agreement. In the backdrop of these facts, it is submitted that Clause (i) of sub-clause (sic) section (2) of section 15 provides:
"(i) that the tenant has not paid or tendered the rent due by him in respect of the house within 15 days after the expiry of the time fixed in the agreement of the tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable."
Taking recourse to these provisions the learned Counsel Shri Bora submitted that initially the entry of the petitioner was on the basis of yearly agreement and it was for a period of one year and therefore by efflux of time and/or after the said period was over, as there is no agreement between the parties, the further possession of the petitioner in the said premises shall be treated on month to month basis because in that eventuality the words 'in the absence of any such agreement by the last day of the month next following that for which the rent is payable" governs the said case. What is the scope of these provisions of sub-clause (i) of Clause (sic) section (2) of section 15 of the Act will be dealt with in subsequent paragraphs of this judgment but suffice it to say at this stage that this Clause does not govern the nature of tenancy. This clause only speaks as to at what point of time a tenant is said to have committed default and therefore the reliance placed by the learned Counsel in respect of his above referred contention is not in accordance with the law. The learned Counsel has not pointed out any other provisions from the Act which would support the contentions raised by the landlord. However, the fact remains that the tenant was inducted into possession of the premises on yearly tenancy and even though the period was for one year as agreed between the parties and as the said agreement was not further extended by the parties and in the absence of the agreement in respect of the extension of the agreement period, the tenant petitioner continued to be in possession of the said premises, that itself would lead to legal consequences that the tenant continued in possession of the said premises on yearly basis. The submission of the learned Counsel that at the end of the year for which the tenancy was agreed, the yearly tenancy conies to an end, is based on the provisions of section 111 of the Transfer of Property Act which provides that tenancy is determined or is terminated by efflux of time. However, Rent Act is a special statute which governs the relations of the landlord and the tenant in respect of the premises to which the Act has been made applicable, and therefore, the said provisions of Transfer of Property Act cannot be invoked and applied to the tenancies covered under Rent Act and this view is supported by the judgment P.N. Rao v. S.K. Radhakrishnamacharyulu, (para 15) and so also Puwada Venkateswara v. C.V. Ramana, and Raval & Co. v. K.G. Ramachandran, and therefore the submission which is based on the principles of Transfer of Property Act cannot be accepted and therefore the same is hereby rejected. The only inference which follows is that once the tenant is inducted into possession of the premises on yearly basis and/or monthly basis for a particular specific period he continues to be the tenant of the said premises as per the initial agreement between the parties and that his tenancy will not come to an end after the agreed period, for which he was inducted as a tenant in the said premises. In the present case also it is hereby held that the petitioner was tenant on yearly basis and after the first year of his tenancy in the absence of any agreement further, the petitioner continued to be the tenant on year to year basis. This finding further results into rejection of the submission of the learned Counsel for the respondent landlord that the default on month to month basis was committed by the petitioner tenant. Only aspect which is left for further scrutiny of this Court is whether the default on year to year basis has been committed by the petitioner.
8. In order to decide whether the default on year to year basis has been committed or not, the controversy which arose as a result of the submissions of the learned Counsel is that Clause (i) of sub-section (2) of section 15 cannot be made applicable to yearly tenancy because according to the learned Counsel, the first half part of sub-clause (i) may probably cover the yearly tenancy but that will apply in respect of tenancies which are by agreement between the parties, however the second half part of the said clause will not cover it because it speaks about the monthly defaults committed by the tenant in the absence of an agreement. Therefore, the question arises is that what should be the correct meaning of Clause (i) of sub-section (2) of section 15 of the Act because in that eventuality the yearly tenancy which are in the absence of an agreement is not covered by the second half part of that sub-clause (i) will not be governed by any clauses of the said Act and in the result the simple analysis will be that in respect of yearly tenancy there will not be any default and such anamolous interpretation cannot be allowed to exist.
The said clause is reproduced once again.
(i) that the tenant has not paid or tendered the rent due by him in respect of the house within 15 days after the expiry of the time fixed in the agreement of the tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable.
On analysis we get the following Clauses:
(i) that the rent has not been paid or tendered due by him in respect of the house within 15 days after expiry of the time fixed in the agreement of tenancy with his landlord;
or in the absence of any such agreement
(ii) that the tenant has not paid or tendered the rent due by him in respect of the house by the last day of the month next following that for which the rent is payable. The words which are important from the second half portion of the said sub-clause (i) of sub-section 15 of the Act are "in the absence of any such agreement" that means which is that such agreement absence of which invokes the application of the second part of that clause. It requires to be stated that the agreement of tenancy whether it is yearly or monthly, whether it is oral or written is always an agreement between the parties, which shall be covered by the provisions of said Act. Therefore, the agreement which is covered by the first half portion of said sub-clause (i) of sub-sect ion (2) of section 15 is not simpliciter an agreement of tenancy but it covers the agreement of tenancy either monthly or yearly, written or oral wherein the time has been fixed, after the amount of rent has become due and payable for the payment of rent and when such time has been fixed for payment of rent within 15 days from that period the amount of rent should be tendered and/or paid by the tenant and if the agreement of tenancy consists of "such clause" then such agreement is covered under the first part of Clause (i) of sub-section (2) of section 15 of the Act. When the agreement between the parties in respect of tenancy, whether monthly or yearly, oral or written, is simply an agreement of tenancy without specifying the date or time within which the payment of rent should be made by the tenant after it has become due, the second half portion of the said clause will apply to every tenancy whether it is monthly or yearly after completion of month or year the rent becomes due and payable and therefore, what should be a grace period within which the tenant shall pay the rent so that he cannot be termed as a defaulter is a problem which has been covered separately and distinctly by the Clause (i) of sub-section (2) of section 15 of the said Act as discussed earlier. Therefore, the only analysis that follows is that this clause applies to all types of tenancy i.e. monthly or yearly for the purposes of deciding the default committed by the tenant. The first half of the clause will apply to those tenancies where in the agreement of tenancy either oral or written the parties have fixed the time for the payment of rent after it has become due and payable as per the agreement of tenancy. The second half will apply when the parties have not fixed the time for payment of the rent after it has become due and payable, no matter whether the tenancy is monthly or yearly. Therefore, the words "in the absence of such agreement" referred not to the tenancy either monthly or yearly, but it refers to the clause in the agreement of tenancy which specifies the date or time fixed for payment of the rent after it has become due and payable and in the absence of such clause, the second half portion of the said Clause (i) will come into operation and if this analysis is accepted, then the provision covers all types of leases and tenancy and the anomaly which was arising as a result of submissions of the learned Counsel stands adjudicated which ultimately results into the rejection of the submission of the learned Counsel for the petitioner.
9. Having interpreted Clause (i) as stated earlier, it will be noticed that in the present matter that even initial agreement period which the parties have agreed was for one year and it does not specify the date or time on which the rent was payable by the petitioner tenant and therefore since inception the agreement of tenancy in the present case was covered under the second half portion of the said Clause (i) of sub-section (2) of the Act. Therefore, the rent was payable by the last day of the month next following that for which the rent is payable. On analysis after the year has been completed within the period of one month the amount of rent ought to have been paid by the present petitioner tenant and if he fails to pay that amount within the period of one month next after last day of the month when it has become due on yearly basis he is under obligation to explain as to why he has failed to pay the rent so as to claim protection of proviso of sub-section (2) of section 15. This analysis will show that two defaults as stated earlier were committed by the present petitioner tenant i.e. from 1-11-1978 to 20-10-1979 and 21-10-1979 to 7-10-1980. The amount of the first default should have been paid within a period of 30 days from 20-10-1979 and the amount of second default should have been paid within a period of 30 days from 7-10-1980. However, admittedly, the amounts have been paid by the petitioner tenant when he appeared in Regular Civil Suit No. 482 of 1981 on or about 7-10-1981 and that too on the next date of the appearance. Therefore, it was abundantly clear that there was default on the part of the petitioner tenant and that his act of depositing the said amount after the receipt of the notice from the Civil Court further fortifies that he accepted that the said amount was due and payable from him and he was in arrears. Therefore I find that the findings recorded by both the courts below that the petitioner was defaulter are just and proper.
10. The above finding is further supported by the fact that during the pendency of this proceeding the landlord is required to file the civil suits for the recovery of the rent amount and it will be evident that all the suits were in respect of the year to year rent found due and payable by the petitioner. Even during the pendency of these proceedings, the tenant has not cared to pay the rent as and when the rent has become due and payable to avail protection of provisions of law. This conduct of the petitioner-tenant during the pendency of the application supports the contention of the respondent-landlord that the tenant petitioner was a defaulter and persistent and consistent defaults in payment of rent were committed.
11. The next question which arises for consideration is as to whether the present petitioner is a wilful defaulter or not? Both the courts below have concurrently recorded the finding that the petitioner is a wilful defaulter. Once the default is proved by the landlord the burden of proof that the tenant is not a wilful defaulter is on the tenant and this proposition has been accepted in the case in the case of Shashikant v. Mohd. Naeemuddin, and as the burden lies on the tenant, it is necessary to look into as to how the said burden has been discharged. The learned Counsel for the petitioner submitted that on the next day of appearance in R.C.S. No. 482 of 1981 an amount of Rs. 4250/- has been deposited as per the summons. He further points out that prior to the filing of the suit by the respondent landlord, he has made several attempts to pay the amount to the landlord. He has stated in his evidence that since Diwali of 1978 he has tried to make the payment of rent on number of occasions by visiting the shop of the respondent landlord. However, he used to state that after the Munim comes he will accept and when he visited when the Munim was present, he used to say that let the landlord be there, and therefore, the payment could not be made. However, the moment the suit is filed the tenant has made the payment. In order to support this statement the petitioner has not produced any other evidence. On the contrary he has stated that since 1964 to 1978 on some yearly occasions the respondent has signed the ledger accounts of the petitioner and has accepted the amount of rent and that he has obtained the signatures of the landlord whenever the landlord had been to him for yearly recovery of rent. He has further stated that this amount which he has paid by going to the shop of the landlord, their signatures have not been obtained. He stated that signatures of the landlord have been obtained by way of evidence. After such statement was recorded, the learned Counsel for the landlord insisted for production of those ledger accounts on which the landlord has made signatures and said prayer of the learned Counsel for the landlord was accepted by the Rent Controller by adjourning the cross-examination and directing the petitioner-tenant to produce all those ledger accounts on which the respondent landlord has signed in token of acceptance of the rent. However, those ledger accounts were not produced. It is further pertinent to note that he has made a statement that he must have visited the landlord 5 to 50 times for the purposes of payment of rent, however it was not accepted. The cross-examiner further asked when it was found that he visited so many times and rent was not being accepted as to whether the rent was sent by Money order or by any other mode to the landlord, the petitioner tenant replied that he has not made any efforts. The petitioner has stated that the amount was deposited in Civil Suit No. 482 of 1981 and R.C.S. No. 7 of 1983 however the amount was not deposited on the first day because he was in financial difficulty. Thus the total evidence of the petitioner-tenant points out that he has made efforts to make the payment but the rent was not accepted and even if he noticed that on several occasions he has visited the landlord and found that the rent is not being accepted he has not made any efforts to send the same by Money order or by Cheque because the moment the rent is not being accepted and/or is found to have been avoided for such number of times that puts the petitioner-tenant on guard and made alert that he is likely to be branded as a defaulter and therefore to protect himself, the petitioner-tenant should have taken every precaution to see that the payment is made by any modes as provided in Clause (i) of sub-section (2) of section 15 of the Act and at least he should have taken care to show that the rent was tendered within time. However, this Court finds that it was not paid and tendered. This finding which is on record does not inspire confidence to accept his testimony to say that he had visited number of times for making the payment, What is pertinent to note is that all this evidence which I have referred to above has been considered by both the authorities and on an analysis the courts below have recorded the finding that he is a wilful defaulter. No perversity has been pointed out by the learned Counsel for the petitioner so as to disturb the said findings recorded by both the courts below. However, consistent insistence of the learned Counsel for the petitioner was that the rent even though due and payable has been accepted by the landlord even prior to the institution of the proceedings and has also been recovered by filing execution petitions which the petitioner has paid. The learned Counsel insisted that on the date of the application as the amounts were accepted and nothing was due from him, it cannot be held that the petitioner tenant is a defaulter. However, the learned Counsel for the respondent Shri S.C. Bora, relied upon the ratio laid down in in the case of P.N. Rao v. K. Radhakrishnamacharyulu, which is a Full Bench Judgment. This is a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. However, the provisions of section 10(2)(i) of the said Act and section 15(2)(i) are pari materia the same. In para Nos. 6, 7, 8 and 9 of the said judgment it has been observed as under:
"6. The first question that falls for consideration in these revision petitions is whether a petition for eviction on the ground of wilful default in payment of rent under section 10(2)(i) of the Act is not maintainable if the entire rent due is received by the landlord before the filing of the petition. Section 10(2)(i) is in the following terms:
A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied:
(i) that the tenant has not paid or tendered that rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable..... the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied he shall make an order rejecting the application.
Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything in section 11 give the tenant a reasonable time, not exceeding 15 days, to pay or tender the rent due by him to the landlord upto that date of such payment or tender and on such payment or tender, the application shall be rejected.
7. It is argued on behalf of the tenant that if the entire rent due had been received before the eviction petition, it cannot be said that the tenant "has not paid or tendered the rent due". In other words, the contention is that the Controller must consider the position as it stood on the date of the petition. As, on that date, no rent was due, the eviction could not be ordered. A similar argument found favour with the learned Judge in Paru Bai v. Sitaramji Bajaj, 1974(1) A.P.L.J. 148 which was a case under the Act and a Full Bench in A. Abbayi v. K. Choultry, (F.B.) a case dealing with section 13 of the Andhra Pradesh (Andhra Area) Tenancy Act which is also in similar terms. In Pant Bai v. Sitaramji Bajaj (supra) the learned Judge observed that under the Rent Control Act the question whether the tenant was wilful defaulter or not has to be considered from the position which stood on the date of the eviction petition. Since on the date of the eviction petition the tenant had paid the entire arrears as per the demand of the landlord and no amount was due on that date he cannot suffer a disadvantage because he was irregular in payment of rent during the past and he cannot be visited with any penalty for his past acts. In A. Abbyi v. R. Choultry (supra), the Full Bench had to deal with section 13(a) of the Andhra Tenancy Act which provided that no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application in that behalf to the Tahsildar and unless such cultivating tenant (a) has failed to pay the rent due to him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality.
8. One of the contentions that was urged before the Full Bench was that as the entire rent was paid before the date of eviction petition though subsequent to the date on which it became due, the petition was not maintainable as no rent was due on the date of the petition. Dealing with this contention it was observed in paragraph 61 of the report as follows:
"The words has failed to pay clearly denote that the tenant must have continued to have failed to pay rent. In other words, there must be subsisting liability to pay the rent on the date of the petition. The Words are not "had failed to pay" which may have indicated that even if he had failed to pay the rent due but has paid it subsequently, the cause of action once arisen can be taken advantage of by the landlord. It will make a mockery of section 13 if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant. The absurdity of such a conclusion becomes more patent when, as we have held, the principle of waiver applies to his right of action and at the same time institute the action on the ground that there was once a default which had given him a right to sue."
We will deal with the question of waiver later on. But for the present we may at once state that we are not inclined to agree with the view that in order to succeed in the petition for eviction, there must be a subsisting liability on the date of the eviction petition and we are of the view that two decisions referred to above were not correctly decided on this aspect.
9. Under section 10(2)(i) the Controller shall make an order directing the tenant to put the landlord in possession of the building if the Controller is satisfied that the tenant had not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. On a plain reading of this section it is clear that all that the Controller has to see is whether the rent due was not paid or tendered within 15 days after the expiry of the time fixed in the agreement. If there is no such agreement he has to see whether the rent was not paid before the last day of the month next following that for which the rent is payable. If that condition is satisfied the Controller has no option but to direct the tenant to put the landlord in possession of the building unless the matter is one which falls within the proviso. Under the proviso, if the tenant's default was not wilful, the Controller may give the tenant a reasonable time not exceeding 15 days to pay or tender the rent due by him to the landlord upto the date of such payment or tender the application shall be rejected. The moment the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no such agreement before the last day of the month next following that for which the rent is payable there is a default and a right on the part of the landlord to have the tenant evicted arises subject only to the proviso. There is nothing in this section which enables the tenant to contend that the right is lost merely because he pays or tenders the rent due by him subsequently. In A. Abbayi v. R. Choultry (F.B.) it was stated that it would make a mockery of section 13 of Andhra Tenancy Act (which is in similar terms) if the landlords are permitted to receive the rent after the breach and still protect their right of action against the tenant. We fail to see any justification for this observation. The Acts such as the Buildings (Lease, Rent and Eviction) Control Act or the Andhra Tenancy Act are no doubt designed to give security to the tenants against unauthorized eviction. But at the same time it cannot be ignored that the right to continue as tenants is available only so long as they pay the rent regularly. On the other hand, if the interpretation sought to be placed on section 10(2) of the Act by the tenant is to be accepted it would mean that the tenant would be free to go on committing default and just at or about the time when the landlord decides to file a petition for eviction tender the rent due and on such tender the landlord loses his right to evict the tenant. In this connection it is to be noticed that under section 10(2)(i) it is not only payment by the tenant but even tender of the rent due is referred to. If therefore, the contention of the tenants is to be accepted it would follow that not only in a case where the landlord has received the rent prior to eviction but also in a case where the tenant merely tenders the rent before the petition for eviction under section 10(2)(i). This view of ours received support from more than one decision of the Supreme Court. In Mangilal v. Sugan Chand, the Supreme Court has considered section 4(a) of the Madhya Pradesh Accommodation Control Act which was in the following terms:
"No suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds:
(a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord;
It was held all that was necessary for the landlord was to establish that the tenant was in fact in arrears", that he has given one month's notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him. The ground set out in Clause (a) section 4 need not be shown to exist on the date of institution of the suit. Their Lordships observed as follows:
"It is sufficient to say that the language of Clause (a) must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other Clauses, the legislature has used different language. If we were to uphold the contention of the learned Addl. Solicitor General we would be virtually re-writing the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to make payment etc." It is certainly not open to a Court to usurp the functions of a legislature."
These observations apply with equal force to the present case. If we were to uphold the contention of the Advocates for the tenant we would have to re-write the section by saying "that the tenant was in arrears of rent at the date of the petition" in place of the words "the tenant has not paid or tendered the rent due etc." Their Lordships went on to deal with the submission that such an interpretation would lead to the result that the landlord may go on receiving the rent from the tenant and then at his sweet will may terminate the tenancy. It has already been seen that a similar argument found favour with the Full Bench in A. Abbyi. v. R. Choultry, (F.B.) but the Supreme Court rejected that argument saying:
The argument based upon it is far-fetched. The landlord who wants to evict the tenant and therefore avails himself of the ground furnished by Clause (a) of section 4 would not wait for years to file a suit against his defaulting tenant. It seem to us that in furnishing the ground to the landlord the legislative intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent:
This is a sufficient answer to the observation made by the Full Bench that it would make a mockery of section 13 of the Andhra Tenancy Act if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant. It is surprising that this decision of the Supreme Court directly in point was not noticed by the learned Judges of the Full Bench."
Therefore, the Rent Controller has to see whether the rent due was not paid or tendered within 15 days after the expiry of the time fixed in the agreement and if there is no such agreement he has to see whether the rent was not paid before the last day of the month next following that for which the rent is payable and if the condition is satisfied the Controller has no option but to direct the tenant to put the landlord in possession of the building, unless the matter is one which falls within the proviso. Therefore, in the present case it has been found as observed in the earlier paragraphs that the rent has not been paid as stipulated in second half portion of sub-Clause (i) of sub-section (2) of section 15 of the Act and no case has been proved by the petitioner tenant so as to invoke the provisions of the proviso of section 15 and therefore, there was no option for the Rent Controller but to issue the order of eviction and rightly so the order has been issued. It is therefore made clear that subsequent payments or the payments made during the pendency of the proceedings are not to be considered for the purpose of deciding as to whether the tenant is a wilful defaulter or not a wilful defaulter.
The tenant has to explain his defaults and wilfulness or the circumstances which may point out that he was a wilful tenant but could not make the payment, must be related to the date or the period of the default and not to any other dates i.e. during the pendency of the proceedings because the payments which are made during the pendency of the proceedings cannot be said to be voluntary and wilful but they are made because of the threat of the proceedings and consequence of being declaring him a wilful defaulter and therefore that is an attempt to circumvent the provisions of the law.
11-A. In the present case I hold that the petitioner tenant was a wilful defaulter and orders passed by both the authorities below are just and proper. There is no substance in the Civil Revision Application. It is hereby dismissed.
12. At this stage, Mr. Bajpai, learned Counsel for the petitioner requested this Court to grant time of six months for delivery of possession to the landlord. Shri Bora, learned Counsel for the respondent-landlord submits that he has no objection for giving such a time provided an undertaking to deliver the possession is filed in this Honourable Court.
13. In the result, Civil Revision Application is hereby dismissed. However, the petitioner tenant is granted six months time to vacate the premises and to deliver the possession to the respondent-landlord provided the petitioner files an undertaking to that effect within a period of one month from today.
Rule discharged. In the facts and circumstances of the case, there shall be no order as to costs.
14. Civil Revision Application dismissed.