Mohammed Shamsuddin vs Ahmed Hafeezuddin Farooqu

P.S. Narayana, J.—The Civil Revision Petition is directed against an order made in R.A. No. 690/94 on the file of the Chief Judge, City Small Causes Court at Hyderabad.

The unsuccessful tenant is the Revision Petitioner. The respondent as General Power of Attorney holder filed the R.C. against the Revision Petitioner for eviction from the demised premises bearing No. 12-2-830/C at Muradnagar, Mehdipatnam, Hyderabad on the ground of wilful default in payment of rents. The respondent also filed an application I.A. No. 284/93 u/s 11(1) and (4) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, hereinafter in short called as "Act" alleging that the Revision Petitioner was due the arrears of rent of Rs.14,700/- and that the original rent was Rs.550/- per month which was enhanced to Rs.850/- on 1-7-1991 and that the Revision Petitioner-tenant had failed to pay the agreed rent from August 1991 inspite of repeated demands and thus he became due to a tune of Rs.19,300/- and the enhanced amount was besides Rs.900/- with water charges and thus he became due to a tune of Rs.21,700/- and a sum of Rs.800/- was paid on 5-3-1993 and there is a balance of Rs.20,900/- and the tenant had opposed the said petition raising several contentions and the learned Rent Controller had made an order u/s 11(1) of the Act and consequently u/s 11(4) of the Act and aggrieved by the same the tenant preferred R.A. No. 258/94 and aggrieved by the order made in the main R.C. No. 566/92 the tenant preferred R.A. No. 640/94. The appellate authority by an order dated 31-12-1996 had dismissed both the R.As. by a common order and aggrieved by the same as against the order in R.A. No. 258/94 the tenant had preferred C.R.P. No. 487/97, which was dismissed at the stage of admission itself by the order dated 1-4-1997. As against the order made in R.A. No. 690/94, the present Civil Revision Petition is preferred by the tenant.

For the purpose of convenience, the parties will be referred to as "landlord" and "tenant".

Sri Basith Ali Yavar, the learned counsel representing the tenant had submitted that though there is some dispute relating to the quantum of rent, no finding had been recorded relating to the quantum of rent and an order was made under Section. 11(4) of the Act on 25-4-1994 and the entire arrears were deposited on 6-6-1994 and in the light of the payment of entire arrears, now an opportunity can be given to the tenant to contest the matter on merits. The learned counsel also had submitted that Section 11(4) of the Act is not mandatory, but only directory and that the word "shall" was construed to be only as directory and the learned counsel had placed reliance on Dr. VIJAYA KUMARI Vs. SATYA PRAKASH AGARWAL 1988(1) ALT 21 . The learned counsel further submitted that though there is some delay, the Court can condone the delay inasmuch as discretion is given to the Court to condone such delay, if any and opportunity can be given to the tenant in the facts and circumstances of the case.

Sri Vilas Afzulpurkar, the learned counsel representing the landlord in his own style and with all vehemence had contended that the order passed u/s 11(1) of the Act had attained finality and C.R.P. No. 487/97 also was dismissed at the stage of admission. The order u/s 11(4) of the Act dated 25-4-1994 is only a consequential order. The learned counsel also had contended that the word used in Section 11(4) is "shall" and hence it is mandatory and there is no discretion left to the Court. Even otherwise, sufficient cause has to be shown for condoning the lapse or delay if any and absolutely there is no explanation forthcoming. The learned counsel had placed strong reliance on LAXMINARAYANA MADANLAL & BROS Vs. JAI PRAKASH & OTHERS 1986(1) ALT 61 Vs. and also Madana Gopala Krishna and Another Vs. Narni Gnana Veerabhadraswamy and Others, .

Heard both the counsel and also perused the records. It is not in dispute that as against the order passed in R.A. No. 258/94, C.R.P. No. 487/97 was filed which was dismissed even at the stage of admission. Hence, the same contentions which had been raised in the C.R.P. cannot be again raised in the present C.R.P. which is filed against the main eviction order made in R.C.C. No. 566/92, as confirmed in R.A. No. 690/94 by the appellate authority. The order dated 25-4-1994 made by the I Additional Rent Controller, Hyderabad in I.A. No. 284/93 in R.C.C. No. 566/92 reads as follows:-

"The Advocate for tenant represented that the arrears as ordered are not deposited till now and prayed ten days time to deposit the same.

I am of the opinion that the time given for payment of arrears is sufficient and the respondent even failed to deposit any amount as per the above order.

Therefore the respondent is hereby directed to evict from the petition premises and hand over vacant possession thereof to the landlord within one month from the date of this order."

Initially an order was made on 5-4-1994 granting time and the tenant had not complied with the same and the counsel for the tenant had no doubt prayed for ten days time to deposit the same as can be seen from the order made in I.A. No. 284/93 in r.c. No. 566/92 dated 25-4-1994. Section 11(4) of the Act reads as follows:-

"If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building".

The words "...the Controller or the appellate authority as the case may be shall unless the tenant shows sufficient cause to the contrary...." assume importance while deciding matters of this nature. In the present case, except making a request for some time no cause, much less sufficient cause, was shown by the tenant and hence in the light of the language of Section 11(4) of the Act, it has to be taken that the tenant had not complied with the direction made by the Rent Controller in this regard. It is no doubt true that in the decision 1st cited supra (Civil Revision Petition No. 672/89, dated 11-12-1989) while dealing with the word "shall" in Section 11(4) of the Act it was observed that it is only directory and not mandatory. In the decision cited 2nd supra (Civil Revision Petition No. 3192 and 3193/85, dated 5-03-1986) it was held that the expression employed in sub-section (4) of Section 11 of the Act, is "shall" thereby giving absolutely no discretion whatsoever to the Rent Controller. In the present case, in the light of the facts and circumstances this aspect may not assume much importance since the condition "...unless the tenant shows sufficient cause to the contrary..." had not been satisfied by the tenant in any manner whatsoever. The learned counsel for the tenant also was unable to substantiate his contention in any manner in this regard. In the decision referred (3) supra it was observed that the stay of operation of the order of the controller at a reasonable construction would only mean the stay of payment of rent at more than the admitted sum during the tendency of the appeal and therefore the non-payment of arrears of rent within the time stipulated by the Rent Controller would per se attract sub-section (4) and the petitioners-tenant have not shown any cause, much less sufficient cause, giving valid reason for non-payment of the admitted rent as per the directions of the controller. Further more in the light of the order dated 1-4-1997 made in C.R.P. No. 487/97 any of the contentions raised by tenant cannot be accepted at all.

In the light of the foregoing discussion, I do not find any merit in the Civil Revision Petition and it is accordingly dismissed. No costs. The tenant is granted three months time to vacate the premises.