K. Afsarunnisa Begum (died) per L.Rs. vs K. Anasuya

P.S. Narayana, J.—The legal representatives of the original tenant-the respondents in RC. No. 64/2002 on the file of Principal Rent Controller at Secunderabad and the respondents in R.A. No. 164/2003 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad - Appellate Authority had preferred the present C.R.P. u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (here-in-after, in short, referred to as ''Act '' for the purpose of convenience). The petitioners (here-in-after referred to as ''tenants'') aggrieved by the reversing order made in R. A. No. 164/2003 on the file of Appellate Authority aforesaid had preferred the present C.R.P. The respondent is the appellant in R.A. No. 164/2003 and the respondent in the present C.R.P. (here-in- after referred to as landlady''). The landlady filed R.C. No. 64/2002 on the file of Principal Rent Controller at Secunderabad praying for the relief of eviction on the ground of wilful default. Before the learned Rent Controller, the landlady was examined as P. W. 1 and one of the legal representatives was examined as R.W.1. Ex.P-1 and Ex.P-2 were marked. The learned Rent Controller came to the conclusion that the landlady failed to establish that the tenants committed wilful default and ultimately negatived the relief. Aggrieved by the same, the landlady carried the matter by way of appeal R.A. No. 164/2003 on the file of Appellate Authority as aforesaid and the appeal was allowed directing the tenants to vacate the premises and deliver possession to the landlady within two months from the date of the order. Aggrieved by the same, the present C.R.P. is preferred.

Contentions of Sri Mohd. Gulam Hussain: Sri Gulam Hussain, the learned Counsel representing the revision petitioners - tenants had taken this Court through the findings which had been recorded by the learned Rent Controller and also the Appellate Authority and would comment that the Appellate Authority had not recorded specific finding relating to the period of wilful default. The learned Counsel also would maintain that the original tenant Hussain died, his wife shown as the first revision petitioner herein also died and the legal representatives are at present prosecuting the litigation. The learned Counsel would maintain that during the relevant period- November, 2001 onwards, the deceased first petitioner - the wife of the original tenant Hussain was not well and her survival itself was an uncertainty and in view of the same the said default occurred. The learned Counsel would maintain that the period of six months which had been reckoned by the landlady as wilful default was not correct and at the best the default can be taken as four months. However reasonable explanation had been given in relation thereto and hence this default may not fall under wilful default though this may amount to a just default. The learned Counsel also pointed out that the landlady filed another eviction petition R.C. No. 89/98 on the ground of personal requirement and the same was dismissed and it is stated that the landlady is unsuccessful even in the appeal and this fact also may have to be taken into consideration while deciding this matter. The learned Counsel also had drawn the attention of this Court to the proviso in Section 10(2) of the Act and would contend that by virtue of the said proviso, the ground of wilful default cannot be applied in all its rigor to the present case. While further elaborating the submissions, the learned Counsel also placed strong reliance on Siraj Ahmad Siddiqui Vs. Shri Prem Nath Kapoor, and Ashok Kumar and Ors. v. Rishi Ram and Ors. 2002 (2) RCJ 96 (SC). The Counsel would maintain that though these decisions are under UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the principle underlying the same can be extended to the present case and inasmuch as the tenants deposited Rs. 3,000/- on 11-7-2002 and Rs. 3,750/- on 12-7-2002 i.e., total arrears from November, 2001 to July, 2002, the relief of eviction cannot be granted to the landlady in the light of the same. The learned Counsel also pointed out to certain of the findings recorded by the Appellate Authority and would comment that all the facts and circumstances had not been appreciated properly by the Appellate Authority.

Contentions of Sri R. Raghunandan Rao: Sri Raghunandan Rao, the learned Counsel representing Sri Kalyan Chakravarthi, the learned Counsel for the landlady, made the following submissions:

The learned Counsel would maintain that though there is some controversy between landlady and tenant relating to the actual reckoning of the period of wilful default, whether it is six months or four months, the fact remains that for a particular period default had been committed. The learned Counsel would maintain that the question which may have to be decided is whether the deposits made subsequent to the filing of the eviction petition, would enure to the benefit of the tenants so as to ward off the blow on the ground of wilful default. The learned Counsel would maintain that the Appellate Authority had considered all these aspects and arrived at the correct conclusion. While pointing out to the relevant paras, the learned Counsel also would comment that even relating to the explanation that the first petitioner was not well during the relevant period and the other aspects, no acceptable or convincing material was placed before the Court and this is what had been observed by the Appellate Authority. While further commenting about the decisions relied upon by the Counsel representing the petitioners, the learned Counsel would maintain that these decisions are in the light of the language employed in Section 24 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and such provision is not there under this Act and hence those decisions are distinguishable and at any rate, they need not be followed while deciding a case under this Act, The learned Counsel also relied upon several decisions and would comment that the mere making of a subsequent deposit after filing of the eviction petition cannot in any way help the tenants. The learned Counsel relied upon Samudrala Narasimha Rao (Died) per L.Rs. and S. Prakhasha Rao v. Smt. Ganga Bai 1990 (2) ALT 40 ; Manda Kameswar Rao and Others Vs. Pulle Venkateswarlu and Others, ; J. Pushpalatha Devi (died) by LRs. Vs. Shyam Sundar and others, ; Arnavaz Rustom Printer Mumbai and another Vs. N.D. Thadani and another, ; and Saifullah Basha and Ors. v. Sakaray''s Dresses Manufacturers of Children Garments 2002 (2) An.W.R. 406. The learned Counsel also while commenting about the proviso u/s 10(2) of the Act would maintain that the said proviso cannot be invoked in the present case.

Heard the Counsel.

The series of events which had ultimately led the tenants to prefer the C.R.P. already had been narrated supra. Before taking up the further discussion, it may be appropriate to refer to the respective pleadings in brief.

The landlady in R.C. No. 64/2002 no doubt pleaded about the filing of R.C. No. 89/98 for eviction on the ground of personal requirement and dismissal thereof and filing of R.A. No. 80/2000. It was stated that during the pendency of the appeal, the landlady gave notice on 6-8-2000 directing late Hussain to deposit monthly rent in her Bank account No. 2760/12 in A.P. Co-operative Bank Ltd., at St. Mary''s Road, Secunderabad and he had been depositing rent till his death. Hussain died on 11-6-2001 and thus the legal representatives became the tenants and they have been depositing rent up to October 2001 in the said Bank but committed default from 1-11-2001 to the end of April 2002, for a period of six months at the rate of Rs. 750/- per month and thus they committed wilful default. The tenants opposed the matter and had taken a specific stand that they had deposited rents up to October, 2001. Further they denied the default period. It was also pleaded that the wife of the tenant, who is also no more, had been seriously ill and that was the reason why the deposit could not be made from November, 2001 onwards but however they had later deposited the arrears of rent in two instalments on 11 -7-2002 and 12-7-2002 for the said period.

On the strength of the respective pleadings, the learned Rent Controller at para 5 framed the following points for consideration:

(1) Whether the respondents have committed default much less wilful default and liable to be evicted u/s 10(2)(i) of the Act or not?

(2) To what relief?

Respondent No. 5 in the R.C. was examined as R.W.1 and the landlady examined herself as P.W.1. Ex.P-1 and Ex.P-2 - the rough sketch and also the statement of account were marked. The learned Rent Controller dismissed the R.C. which was carried by way of appeal by the landlady. The Appellate Authority in RA No. 164/2003 at para 10 framed the following point for consideration:

Whether the tenants committed default in payment of rent from 1-11 -2001 till the end of April 2002 for a period of 6 months at the rate of Rs. 750/- per month amounting to Rs. 4500/-; if so, the default is wilful and the tenants are liable to be evicted from the schedule premises?

The learned Judge discussed the said point commencing from paras 11 to 15 and ultimately came to the conclusion that the ground of wilful default had been made out by the landlady and ordered eviction. Hence, the present C.R.P.

The evidence of P.W.1 and R.W.1 had been dealt with at length. It is no doubt true that there is some controversy between the parties relating the actual period of default, the landlady taking specific stand that the period is 6 months and the tenants taking specific stand that the period is only 4 months. Be that as it may, the fact remains that both the parties are admitting the fact that there is default for a period of four months at least. Now the question to be considered is whether this default to be construed as wilful default within the meaning of Section 10 of the Act or not. The explanation given by the tenants in the counter and also in the evidence of R.W.1 is that the wife of the original tenant was not well and because of that problem there was some delay, but however, after the eviction petition was filed with promptness all the arrears had been deposited and hence the conduct of the tenants if taken into consideration, will not amount to wilful default. In substance, this appears to be the specific stand taken by the revision petitioners -tenants. Strong reliance was placed on the decisions of the Apex Court in Siraj Ahmed Siddiqui''s case (cited 1 supra) and Ashok Kumar''s case (cited 2nd supra). Both these decisions relate to UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 where under there is a provision relating to the payment of rent on the first hearing of the suit. It is needless to say that such corresponding provision is not there in the Act in A.P. The learned Counsel for the tenants also placed strong reliance on the proviso to Section 10(2) of the Act which reads as hereunder:

Provided that in any case falling under Clause (i), if the Controller is satisfied that the tenant''s default to pay or tender the rent was not wilful, he may, notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected.

The language of the proviso itself is self-explanatory. The words "tenant''s default to pay or tender the rent was not wilful'' would assume some importance. On a careful reading of Sub-section (2) of Section 10 along with proviso, it is clear that the said proviso was introduced for a particular specified purpose and this Court is of the considered opinion that the tenants cannot take aid of the said proviso. Be that as it may, it is no doubt true that in the decisions the Apex Court had taken the view that mere default always may not amount to wilful default unless there is supine indifference or it is something deliberate, intentional and conscious. When the commission of default is not in controversy, the explanation to be given definitely would be on the tenants to satisfy the conscious of the Court that the default committed during the relevant period will not fall under the expression "wilful''. The question is whether the tenants have been successful in discharging the same. It is true that the default said to have been committed is only during the pendency of R.C. No. 89/98-the prior proceeding. The reason for the nonpayment of rent during the relevant period and the explanation offered by the tenants had been dealt with by the Appellate Authority at para 13 wherein the Appellate Authority observed:

the reason for non-payment was explained by the tenants that they could not deposit the rent due to ill health of first tenant and the 5th tenant deeply involved in protecting the life of his mother but they did not produce any scrap of paper to prove that the first tenant was ailing from any disease and that any of the tenants deeply involved in the protection of life of their mother. Therefore, the reason assigned by the tenant for non-deposit of rent to the credit of the landlady''s account in A.P. Co-operative Bank, St. Mary''s Road Branch, Secunderabad, is not sufficient reason.

In the absence of any reasonable and acceptable explanation, necessarily the Court may have to arrive at a conclusion that the unexplained default for the period to be taken as wilful only. This is the view which had been expressed in Samudrala Narasirnha Rao (Died) per L.Rs. and S. Prakasha Rao v. Smt. Ganga Bai (cited 3 supra); Manda Kameswara Rao (Died) per L Rs. , v. Pulle Venkateswarlu (cited 4 supra); and Arnavaz Rustom Printer Mumbai and Anr. v. N.D. Thadani and Anr. (cited 6 supra). While dealing with the similar fact situation, no doubt, slightly in different context this Court in J. Pushpalatha Devi (Died) by LRs. v. Shyam Sundar (cited 5 supra) held:

A Rent Controller, having regard to his limited jurisdiction is bound to consider the cases of the respective parties within four corners of Section 10 of the Act. In terms of Clause (i) of Sub-section (2) of Section 10 of the Act, a tenant is bound to pay or tender rent due from him within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or, in absence thereof, by the last date of month following that month, for which the rent is payable. A tenant, who fails to establish that he has paid or tendered rent within the time stipulated aforementioned, would be a defaulter. As the proviso appended to subsection (2) of Section 10, is beneficent to the tenant, the doctrine of wilful default to some extent has been introduced to allow him to deposit the amount only in the event he is satisfied that the tenant is not a wilful defaulter. Such satisfaction must base on objective criteria. A default occurs at the expiry of each month subsequent to the last date of the month next following that for which the rent is payable. It was, therefore, for the tenant to show that he had no other option but to deposit the rent despite his attempt to pay or tender the monthly rent payable to the landlord.

It is no doubt true that the tenants deposited all the arrears of rent subsequent to the filing of the eviction petition. It is also true that a prior eviction petition on some other ground resulted in dismissal and an appeal there from had been pending at the relevant point of time. It is pertinent to note in the peculiar facts of the case, the pendency of the prior litigation also cannot be taken advantage by the tenants since the ground of wilful default was not the ground in the prior litigation. The present litigation is based on the ground of wilful default and wilful default alone. Hence, after initiation of the action for eviction on the ground of wilful default the mere fact that the deposits were made by the tenants at the best may be taken as one of the circumstances but the same cannot be taken advantage so as to defend the ground of wilful default or to ward off a blow of eviction arising out of the ground of wilful default on such a ground. This Court is thoroughly satisfied that the tenants cannot escape from the rigor of the ground of wilful default even if the proviso referred to supra to be taken into consideration. Rent Control Legislation cannot be said to be a beneficiary Legislation only in favour of tenants, but equally the interest of the landlord and landlady also may have to be taken into consideration while interpreting the statutory provisions. Balance may have to be maintained in this regard. Hence, viewed from any angle, on a careful scrutiny of the reasons recorded by the Appellate Authority, this Court is of the considered opinion that the impugned order does not suffer from any legal infirmity warranting interference at the hands of this Court. Accordingly the tenants are bound to fail and the C.R.P. shall stand dismissed. No costs.

It is stated that the tenants are doing some business in the premises. Taking the over all facts and circumstances into consideration, the tenants are hereby granted six months time to vacate the premises. It is needless to say that the tenants are bound to pay the rents regularly even during that period.