M. Sadiq Vali vs P. Lakshmamma

This civil revision petition is directed against the order passed by the learned Additional District Judge, Hindupur dismissing RC.A.No.4/91 preferred by the petitioner. The appellate authority confirmed the order of the Rent Controller. The tenant is the revision petitioner herein. Both the Rent Controller, as well as the appellate authority held that the petitioner/tenant is liable to be evicted from the premises in his occupation. Hence, this revision petition.

The respondent herein is the landlady and the petitioner is the tenant in respect of a non-residential premises in question. The present monthly rent payable by the petitioner/ tenant is Rs. 130-00, payable on or before fifth of every English calender month. The respondent herein filed rent control case against the petitioner/tenant on the ground that the petitioner-tenant had committed wilful default in payment of rents and the premises in question is required for her personal occupation, as she is in bona fide requirement of the same.

During the pendency of the case, the petitioner herein has set-up a plea to the effect disputing the title of the respondent-land-lady in respect of the premises in question. Both the Rent Controller, as well as the appellate authority having disbelieved the plea of the petitioner/tenant ordered his eviction on that ground also. Thus, eviction of the petitioner/tenant has been ordered by the Rent Controller, as well as the appellate authority on all the three grounds viz., the petitioner had committed wilful default in payment of the rents; the respondent-landlady is in" bona fide requirement of the premises in question for her occupation and the petitioner-tenant has set-up adverse claim and title in respect of the premises in question without any just cause.

It is the case of the respondent landlady that the petitioner/tenant has been paying rents at irregular intervals inspite of the demand for payment of rents. On 9-8-1983 the petitioner has paid a sum of Rs.390-00 towards rent due for the months of May, June and July, 1983. The petitioner herein has been paying rents at irregular intervals upto 5-4-1984. The last payment was made on 10-4-1984. Later on till the date of filing of the rent control petition in the year 1985 no rents are paid by the petitioner herein. Non payment of rent by the petitioner herein is wanton and wilful knowing full-well of its consequences.

It is the case of the respondent-land-lady that the petitioner-tenant never cared to pay rents as required under law. Legal notice dated 13-7-1983 (Ex.A1) was issued on behalf of the respondent-land-lady putting the petitioner/tenant on notice about his wilful default. No reply has been given by the petitioner/tenant nor any rents were paid by him. It is the further case of the respondent-land-lady that she requires the premises in question for her own occupation.

Wilful Default

The petitioner, admittedly paid a sum of Rs.390-00 or 9-8-1983 towards rent for the period of three months i.e., May, June and July, 1983. Thereafter, he was paying rents irregularly upto 5-4-1984. Even for the months of April and May, 1984, the rent was paid in June, 1984. Thereafter no rent whatsoever is paid by the petitioner-tenant towards the rent till the date of filing of the rent control petition. The petitioner was put on notice by the respondent-land-lady through legal notice dated 13-7-1983 (Ex A1) informing the petitioner of his wilful default in payment of rents. The petitioner was also put on notice by the respondent-land-lady to the effect that she is in bona fide requirement of the premises for running her own business. The petitioner even failed to respond to the notice. It is required to notice that the petitioner, himself, has admitted that he had paid rents for the month of May, June and July, 1983 only on 9-8-1983. it is on record that the petitioner made last payment of rents on 10-4-1984 and thereafter for the months of April and May, 1984 in the month of June, 1984. It is also on record that thereafter the petitioner failed to pay rents inspite of several demands made by the respondent-land-lady. However, the petitioner is alleged to have made an attempt to pay rent of April and May, 1984 in June, 1984, which was not accepted by the respondent-land-lady, as there was abnormal delay in payment of rent. Again the petitioner is stated to have made an attempt to pay the rent for one month, which was also not accepted by the respondent-land-lady for the very same reason. The fact remains that the petitioner failed to tender or remit any rent thereafter. The petitioner took the plea, as if, he paid the rents regularly, but did not obtain the receipts in evidence of payment of such rents. Both the Rent Controller, as well as the appellate authority disbelieved the said version of the petitioner. No reasons are forth coming and there is no material on record to take any different view in the matter. It is the desperate plea of the petitioner to say that the receipts were not being issued, though he tendered rents. The Rent Controller, as well as the appellate authority concurrently found that the petitioner had committed wilful default in tendering rents liable to be paid by him to the respondent. It is a finding of fact arrived at by the Rent Controller, as well as the appellate authority upon appreciation of evidence on the material available on record.

The learned Counsel for the petitioner, Sri O. Manohar Reddy, however, submits that the conduct of the petitioner in paying rents at irregular intervals is deemed to have been condoned by the respondent-lady as she went on accepting the payment of rent at irregular intervals. It is contended that if the land-lady accepts rents at irregular intervals, he is bound to continue the same practice and one fine morning the land-lady cannot turn round and say that the tenant has committed wilful default in payment of rents. In support of his submission, the learned Counsel for the petitioner relied upon the decision of the Apex Court in Rashik Lal and Others Vs. Shah Gokuldas, . The Apex Court having regard to the facts and circumstances of that case observed :

"The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments."

I am of the considered opinion that the said Judgment does not support the proposition advanced by the learned Counsel for the petitioner. It was a case where the landlord after receiving the rents paid by the tenant at irregular intervals and, in fact, lulled the tenant in the belief that things were all right. In such circumstances, the Court observed that the landlord ought to have served the tenant with notice demanding regular payment, if he wish to insist upon it. In the said case, there was no resistance whatsoever from the landlord against the delayed payment, even before the Apex Court. In the present case the petitioner had been served with a notice (Ex.A1) dated 13-7-1983 calling upon him to pay the rents and putting on him notice that he has committed wilful default in payment of rents. The petitioner did not even care to reply for the notice. Here is not a case, where the landlord lulled the tenant with the belief that the irregular payments will be accepted for ever from the petitioner.

On the other hand it is required to notice that the petitioner continued his act of irregular payment upto 5-4-1984. Even after service of notice, the rents payable for the months of April and May, 1984, were paid in the month of June, 1984. Thereafter, there are no payments by the petitioner towards rents, till the date of filing of the rent control petition. In such circumstances, there is no other go except to hold that the petitioner had committed wilful default in payment of rents. It is true, as contended by the learned Counsel for the petitioner, that every default cannot be treated as wilful default. But, what are the reasons assigned by the petitioner for nonpayment of rents regularly ? The answer is that the landlord is in the habit of accepting the rents at irregular intervals. Does it mean that the tenant has no responsibility and duly to pay rents to the landlord at regular intervals. If the landlord is not accepting the rents regularly and failed to issue receipts, as contended by the petitioner, nothing prevented him to avail the remedy provided u/s 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ''the Act''). No such course is adopted by the petitioner.

The decision relied upon by the learned Counsel for the petitioner in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, does not support or advance the plea taken by the petitioner. The said decision, in fact, lays down that the tenant has to prove that he was prevented by sufficient cause or circumstance beyond his control in honouring the notice sent by the landlord demanding payment of rents. In the instant case the petitioner not only failed to give reply to the notice, but even has not offered any explanation whatsoever showing any sufficient cause or circumstance beyond his control as to why he could not pay rents regularly. Mere assertion that the land-lady was accepting the rents at irregular intervals, assuming- even if it is true, I am of the considered opinion does not absolve the petitioner of his duty and responsibility to tender rents regularly every month, unless it is established that he was prevented by sufficient cause for the reasons beyond his control in not paying the rents.

The learned Counsel further placed reliance on the decision reported in P. Rajanna Vs. K. Lalitha Reddi alias Chinnamma Devi and another, , where this Court held that the following tests may be applied for the facts and circumstances of each case, (emphasis is of mine).

(1) The social and economic status of the tenant and the landlord.

(2) The capacity of the tenant to pay the rent at a given time.

(3) The bona fide conduct of the tenant in making attempts to pay or tender the rent to the landlord.

(4) The conditions of the tenant at a particular situation like family obligations, social obligations, illness, festivals etc.

(5) The conduct of the landlord in relation to the tenant regarding payment of rent.

(6) The totality of the circumstances in a particular case to satisfy the conscience of the Court that the tenant was guilty or otherwise in regard to payment or tender of rent.

(7) Any other useful circumstances in a given case in support of the above tests.

It is difficult to appreciate as to in what manner the ratio of the law declared and the tests in the said judgment would come to the rescue of the petitioner. The petitioner had not taken any such plea about his social and economic status and his incapacity to pay rents at the given time. There is no attempt on his part to establish his bona fides and attempts if any jade by him to pay or tender the rents to the landlord. No family obligations, social obligations, illness or festivals are pleaded as defence for non payment of the rents. As observed by the Court each and every case has to be decided on its own facts.

The decision relied upon by the petitioner in Syed Dastagiri Khadri v. K.S.Saleem Basha 1993 ALT Supp. (1) 144 also would not support the case of the petitioner. It is true as held by the Court the landlord in that case has been receiving the rents irregularly. The Court held that the landlord cannot subsequently turn round and treat the late payment of rents as wilful default and base his claim for eviction on the ground of wilful default. But, in the very case it is observed by this Court that the same is subject to one exception where after accepting irregular payments in arrears, the landlord gives notice to the tenant that he will not accept irregular payments or where the irregular payment has been received under protest. After issuing such notice by the landlord and even thereafter the tenant commits wilful default, acceptance of arrears of rent would not preclude the landlord from claiming eviction on the ground of wilful default in payment of rents.

The decision in Ramala Ramaiah died per L.Rs. Vs. Moostiala Narasimha Rao, needs no analysis, as the Court in the said Judgment as in other cases laid down that the landlord should give notice of his intention to the tenant not to accept rents at irregular intervals and if the tenant continues to commit default even after the issuance of notice, acceptance of rents by the landlord would not absolve that the tenant had not committed wilful default in payment of rents.

Viewed from any angle, the petitioner herein had committed wilful default in payment of rents and the findings recorded by the learned Rent Controller and the appellate authority are accordingly upheld.

Bona fide Requirement

It is the case of the respondent-land-lady that she is in bonafide requirement of the premises in question for her own business. She requires it to run a Kirana shop inasmuch as the premises in question is adjacent to the residential portion in which she is residing. The petitioner resisted the plea of the land-lady on the ground that the landlady has got some other building and so she can carry on business in those buildings which belong to her. No details whatsoever are furnished by the petitioner as to what are the other buildings owned by the respondent-landlady. The other plea adopted by the learned Counsel for the petitioner that the landlady got vacated other tenants and she can as well use those premises for her self occupation It is difficult to accept the said plea. Whether the respondent-landlady has secured a non-residential premises by evicting other tenants and if so what are the other premises available for her occupation ? There is no material or evidence whatsoever to this effect. The plea taken by the petitioner is totally vague. On the other hand, it sounds plausible that Ihe respondent-landlady requires the premises in question for running a kirana shop, the shop in question is adjacent to her residential premises in which she is admiltedly residing. The finding recorded by the Rent Controller, as well as the appellate authority does not suffer from any infirmity whatsoever warranting interference. The finding that the respondent-landlady requires the premises in question for her bonafide business purposes is upheld. Even on this ground, the petitioner-tenant is liable to be evicted from the premises in question.

The learned Counsel for the petitioner, however, submits that the Rent Controller and the appellate authority ought to have considered the application of Section 10(3)(c) of the Act, which reads as follows :

"A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building lo put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be.''''

It is difficult lo accept the submission made by the learned Counsel for the petitioner. The provision has no application to the facts of the case on hand, it is not as if the landlord in the instant case has asked for an additional or remaining part of the building to put her in possession. It is not a case of requirement of additional accommodation Therefore, the question of considering hardship which may be caused to the tenant will outweigh advantage lo the landlord does not arise. It is not acase of additional accommodation. The submission is totally misconceived.

The finding recorded by the learned Rent Controller, as well as the appellate authority that the petitioner without any just cause had disputed the title of the respondent-landlady in respect of the premises requires no interference. The finding of Ihe appellate authority, on evidence, in the case clearly indicates that the petitioner herein without any reasonable basis has denied the title of the respondent-landlady. It would definitely constitute a ground for ordering eviction of the petitioner. I do not find any reason whatsoever or basis for the petitioner to take such a plea disputing the title of the respondent-landlady in respect of the premises in question.

Therefore, I am of the considered opinion that the petitioner/tenant is liable to be evicted from the premises in question on the ground of wilful default as well as bonafide requirement of the landlady. The petitioner is also liable for eviction for the reason that he had disputed the title of the respondent-landlady without any just and reasonable cause.

The civil revision petition fails. It is accordingly dismissed with costs. Three months time from today is granted for vacating the premises by the petitioner-tenant, failing which the respondent-landlady shall be at liberty to proceed with the execution and recover the possession.