Mohd. Moheinuddin Farooqui vs Mohd. Abdul Hameed

P. Venkatarama Reddi, J.—Petitioner herein is a tenant. The respondent filed R.C. No. 602/93 on the file of the III Addl. Rent Controller, Hyderabad seeking eviction of the tenant from the petition schedule premises on the ground of wilful default in payment of rent. The respondent-landlord filed I.A. No. 784/93 u/s 11(1) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (hereinafter, referred to as the ''Rent Control Act'') seeking a direction to the tenant-petitioner to deposit the arrears of amounting to Rs. 8,945/- for the period 18-8-1988 to September 1993 and a further sum of Rs. 6,600/-towards the rent-for the amenities provided. The Rent Controller allowed the I.A. by his order dated 16-7-1994 and directed the petitioner to deposit arrears of rent at Rs. 250/-per month from 18-8-88 to 20-6-1990 and at Rs. 285/- per month from 21-6-90 to 30-6-94 by 1-8-94. The petitioner was also directed to pay future rent at Rs. 285; - per month on the 5th of every succeeding month. Aggrieved by this order, the petitioner preferred R.A. No. 472/94 before the appellate authority (Chief Judge, City Small Causes Court) who by his order dated 24-10-94 dismissed the appeal. C.R.P. No. 100/95 is filed against that order.

The respondent-landlord filed another interlocutory application I.A. 588/94 under S. 11(4) of the Act seeking a direction that the tenant should deliver vacant possession by reason of his failure to comply with the directions given by the Rent Controller in I.A. 784/93. The said I.A. having been allowed by an order dated 10-8-94, the tenant preferred R.A. 515/94. The appellate authority dismissed the said appeal as a consequence of dismissal of the said R.A. 472/94. CRP No. 101/95 is directed against that order.

The case of the respondent is that he purchased the premises bearing No. 17-3-756/3 situate at Jaffer Road, Yakutpura, Hyderabad from one Sri P. Ramaswamy (PW 1) on 22-5-1992 and that the petitioner failed to pay rent from the inception of the tenancy. To cover up his default, he filed an application RC No. 613/92 under S. 9(3) of the Act for permission to deposit the rent in Court as he entertained a doubt as to who was entitled to receive the rent, that petition was allowed with a direction to deposit the rent including the arrears of rent at the rate of Rs.300/- into Court to the credit of the respondent (2nd respondent in RC 613/92) who became the owner of the property by purchasing the same from Sri Ramaswamy'' (1st respondent therein). The arrears of rent was directed to be deposited within 15 days from, the date of the order and the future rent on 5th of every succeeding month. This order was passed on 23-4-1993. The directions given. in that order were not complied with and the petitioner did not pay the rent up to 30th September, 1993 i.e., till the date of filing 1. A: 784/93. Hence the I. A. was filed to direct the petitioner-tenant to pay a sum of Rupees 16,545/- towards arrears of rent.

The case of the petitioner-tenant is that he took the premises on lease on 18-8-88. The rent was Rs. 250/- per month and it was enhanced to Rs. 300/- per month in 1991 (including Rs. 15/- towards electricity charges). He pleaded that he was not aware of the purchase of the property by the respondent from Shri P. Ramaswamy as the sale deed was not made available to him. He used to pay the rent to Sri Ramaswamy regularly and he was having the receipts. After the month of October, 1991, Sri Ramaswamy refused to receive the rent. But, he went on sending the rents through money order to Sri Ramaswamy up to January 1992 even though Ramaswamy refused to receive the same. On 16th March 1992, the petitioner states, that he sent a legal notice lo Sri Ramaswamy calling upon him to furnish the account number of the bank in twin cities for the purpose of crediting rent. In April, 1992, Sri Ramaswamy issued a reply notice alleging that the tenancy stood terminated on 22-5-1991 for which the petitioner sent a reply notice on 13-4-1992. On 18-8-1992, the petitioner received another notice from Sri Ramaswamy that he sold away the demised premises to the respondent herein on 22-5-1992 and that the rents were due from the petitioner from 1-6-1990 onwards. It was at that stage he filed R.C. No. 613 of 1992. The petitioner then submits that he paid rents up to September 1991 and tendered the rents to Sri Ramaswamy from October, 1991 onwards but he refused to receive the same. Therefore, according to the petitioner, he has to pay rent from October, 1991 onwards at Rs. 300/- per month up to September 1993 i.e., 24 months aggregating to Rs. 7,200/- and that the re-fundable deposit of Rs. 6,000/- is remaining with the original landord Sri Ramaswamy.

Sri P, Ramaswamy, the original land lord was examined as P.W. 1 and the peti- tioner- tenant examined himself as R. W. I. A certified copy of the order passed in R.C. No.613of 1992 was filed as Ex.P.1.

Before proceeding further, it would be appropriate to refer to the proceedings in R.C. No. 613 of 1992. In that petition filed u/s 9(3), the plaintiff pleaded that he paid the rent up to September, 1991 to the vendor of the respondent herein (P.W. 1) and thereafter he refused to receive the same, Then the petitioner sent the rent through money order which was refused. The petitioner then got issued a legal notice to him calling upon him to receive the rent or furnish the name of the Bank in which he could deposit the rent to the account of the. landlord. But SriRamaswamy, the vendor of the respondent did not give any reply. But, some of time later, he gave notice dated 1-4-92 terminating the tenancy with effect from 25-5-1991. On 18-8-1992, he received another notice from Sri Ramaswamy stating that he sold away the property to the respondent on 22-5-1992. As the vendor of the respondent claimed that the rent from June 1990 onwards was due from the petitioner and he did not furnish the registered sale deed despite the request made by the petitioner, he entertained a bona fide doubt as to who was entitled to receive the rent and hence he filed the application to permit him to deposit the rent in Court. The learned Rent Controller held that there was no dispute between the vendor of the respondent and the respondent and that the petitioner was bound to pay the rent including the arrears to the respondent only. Accordingly the petition was allowed with a direction to deposit the rents into Court including the arrears to the credit of the respondent herein who became the owner of the property. As already stated, the said direction given in the order dated 24-3-1993 was not complied with.

It may be stated that the petitioner deposited with the appellate Court a sum of Rs. 11,135/- on 26-8-1994 representing the arrears of rent from October, 1991 onwards which were admittedly due from the petitioner.

The question that arises in C.R.P. No. 100 of 1995 is whether the direction to pay the arrears of rent from 18-8-1988 to 30-9-1993 is legally sustainable.

P.W. 1, the original landlord Shri P. Ramaswamy was examined on behalf of the landlord. The evidence of P.W. 1 is sketchy and ambiguous. He stated that the tenant (petitioner herein) did not pay any rents to him from the beginning in spite of repeated demands, that subsequently, the tenant executed a fresh rental deed after adjusting Rs. 3,000/- towards rent from out of the deposit of Rs. 6,000/- and even after the said adjustment, rents were due from the petitioner. The rental deed said to have been executed was not filed. He was not able to say up to which period Rs. 3,000/- was adjusted towards the arrears of rent. In the cross-examination, he stated that he was not aware for what period he received the rent. Again he stated that when he sold the suit premises, rents for 8 or 9 months were due. He then stated : "it might be the respondent paid rents to my son up to September 1991."

Coming to the evidence of R.W. 1, he did not file any rent receipts though he stated that he was having the receipts with him. It appears from the order of the Rent Controller, he filed two rent receipts, one of which was not signed and the said receipts were not even marked. However, he maintained that the rent was due only from October, 1991, He did not even state whether any rent due was adjusted out of the security deposit of Rs. 6,000/- as claimed by P.W. 1. Thus, the evidence let in by the tenant is also scanty and laconic.

The findings of the Rent Controller as confirmed by the Appellate Authority rested on the fact that the rent receipts which were admitted to be in the custody of the petitioner were not filed. Both the authorities were carried away by the fact that the rent was not deposited despite the order in R.C. No. 613 of 1992. The Appellate Authority also commented that the petitioner did not call upon either P.W. For the respondent to adjust the arrears of rent from out of the deposit amount and that the adjustment cannot be automatic. The Rent Controller and the Appellate Authority have not adverted to the evidence of P.W. I and some of the admissions made by him. Moreover, the more crucial aspect that escaped the attention of both the Tribunals is the legal notice dated 18-8-1992 issued on behalf of the original landlord (P.W. 1) which, though not marked in these proceedings, was filed in R.C. No. 613 of 1992 and had been referred to in Ex.P. 1 i.e., the order of the II Additional Rent Controller in R.C. No. 613 of 1992 as well as in the counter of the tenant and his deposition as R.W. 1. The said notice was exhibited as Ex.P. 7 in R.C. No: 613 of 1992. Both the learned Counsel have expressed their consent to look not the said document to which, as already stated, reference was made in Ex.P.l. As per this legal notice issued by Sri B, Achary, Advocate on behalf of the original landlord Sri P. Ramaswamy, the petitioner was in default in payment of rent from 21st June, 1990 and the rental arrears payable were to be adjusted against the deposit amount and the remaining amount be paid over to the vendee-respondent herein. Thus, it is clearly mentioned in the legal notice that the petitioner had fallen into arrears from 21st June, 1990 only but not from anterior period. The notice further gives liberty to the petitioner to adjust the deposit.

Then the question is whether and to what extent the adjustment out of the deposit has been made and whether any arrears are due for the period anterior to October, 1991 It is in this context the evidence of P.W. In assumes importance. According to P.W. 1 he had adjusted Rs. 3,000/- out of the deposit of Rs. 6,000/-. The adjustment could only be for the period subsequent to 21st June, 1990 i.e. the date mentioned in the legal notice dated 18-8-1992. That means, eleven months rent (calculated at the rate of Rs. 285/- per month as per the version of the petitioner) should have been adjusted. That takes us to May, 1991. The evidence of P.W.1 almost points to the same effect. In the course of his cross-examination, P.W. 1 stated that by the time of sale of the suit premises, rents for 8 or 9 months were due. According to legal notice and the admitted case of the respondent himself, the sale took place on 22-5-1992. Eight or nine months prior to that date will take us to August or September, 1991 Thus, the averments in the legal notice dated 18-8-1992 coupled with the evidence of P. W. 1 with regard to the adjustment of rent would go to show that the petitioner cleared the arrears of rent at least up to May, 1991, though his version as to direct payment of rent up to that period without any adjustment cannot be believed in the absence of any receipts produced by him. There is, however, an uncovered gap of about three months emerging as a result of giving effect to the plea of adjustment spoken to by P.W. 1 vis-a-vis the version of P. W. 1 that by the date of sale, 8 or 9 months'' rent was due. However, it does not make material difference even if it is taken that the petitioner paid rents up to May, 1991 by adjustment of deposit or otherwise. It is to be noted that admittedly, Rs. 6,000/- was the deposit amount lying with P.W. 1. He himself adjusted Rs. 3,000/-. Still an amount of Rs. 3,000/- is available for adjustment. Of course, as pointed out by the appellate authority, the tenant could not have unilaterally effected adjustment without giving notice to landlord. But, when the landlord (P.W. 1) had permitted the petitioner to adjust the dues from out of deposit amount (vide legal notice dated 18-8-1992) and in fact P.W. 1 adjusted a part amount, it would be open to the petitioner to adjust the rental arrears against the balance deposit amount lying with P.W. 1. If such adjustment is allowed which ought to be, undoubtedly, there could be no dues up to September, 1991. Even for some months subsequent to September, 1991, there would have been no dues it the adjustment continues. But, in view of the specific and admitted case of the petitioner that he had fallen into arrears from October, 1991 for whatever reason it be the petitioner cannot be absolved of the liability to pay the rents from October, 1991. Accordingly, the Rent Controller while disposing of I.A. No. 784 of 1993 should have directed the petitioner to pay the rent due from October, 1991 onwards. There is absolutely no justification to direct the deposit of arrears of rent right from August, 1988. In giving such direction, the Tribunals below have fallen into a serious error which ought to be rectified in this revision under S. 22 of the Act.

It is for the non-compliance of the order passed under S. 11(1), the direction under S. 11(4) was given in I.A. No. 588 of 1994 to vacate the suit premises within 15 days from the date of the order. When once it is held that the order under S. 11(1) is unsustainable and a substantial part of the amount directed to be paid under the said order was not due to be paid by the petitioner and in fact such an order has been contested in appeal and revision, the consequential order passed by the Rent Controller under S. 11(4) cannot remain valid. That also needs to be set aside.

It is contended by the learned counsel for the petitioner that arrears of rent for the period anterior to the date of purchase of the building of the petitioner cannot be directed to be paid in a petition under S. 11(1) filed by the respondent herein. He contends that the liability to pay rent to the respondent would arise only after he became owner in May, 1992. This contention has no merit whatsoever. In the earlier R.C.--R.C. No. 613/92, the original landlord Sri Ramaswamy who was impleaded as respondent No. 1 therein made a prayer to direct the petitioner to pay the arrears of rent and continue to pay rent to the respondent herein. Accordingly, in the said petition, direction was given to pay the arrears of rent and future rent to the respondent herein. That order has become final. That apart, even in the legal notice dated 18-8-1992, the original landlord Sri Ramaswamy called upon the petitioner to pay the arrears to the respondent only, after adjusting the deposit amount. P.W. 1, the original landlord, stated in his deposition that he gave the notice attorning the tenancy in favour of the respondent herein. Thus, when the original landlord signified his consent for the payment of rent including the arrears to the respondent who purchased the building from him and the direction given in the earlier petition R.C. No. 613 of 1992 was passed on such consent, it is not open to the petitioner to raise the contention that the direction given in the impugned order in I.A. No. 784/93 for payment of rent to the respondent even for the period anterior to the date of purchase of the building is untenable.

Before closing the case, I must advert to the contention raised by the learned counsel for the respondent drawing support from the order of the appellate authority in this behalf. The contention is that the order in R,C. No. 613 of 1992 has become final and the same is binding on the petitioner and, therefore, the petitioner should have deposited the arrears of rent in accordance with the direction contained therein irrespective of any order passed under S. 11(1) of the Act. The failure to do so, it is contended, indicates supine indifference on the part of the petitioner to pay the rents and he is liable for eviction on the ground of wilful default, I am unable to countenance this argument. There may be considerable force in the contention of the respondent''s counsel that the failure to deposit or pay the rents despite the direction given in R.C. No. 613 of 1992 coupled with the failure to tender even the admitted rent falling due from October, 1991 for nearly 3 years would give rise to an inference of wilful default and the petitioner may on that ground become liable for eviction. But I am not concerned in these revisions with the eviction order passed on the ground of wilful default in payment of rent under S. 10 of the Act and 1 am, therefore, not expressing any view in that behalf. The eviction order in this case was passed under S. 11 (4), the foundation of which lies in the order passed in the application under S.11(1). In judging the legality of the order passed under S. 11 (4), it is only to be seen whether the order passed under S. 11(1) remained uncomplied without sufficient cause. The issue as regards the non-compliance of the order passed under S. 9(3) is really irrelevant in this context. That order under S. 9(3) was passed at the instance of and for the benefit of the tenant himself, who entertained a doubt as to his liability to pay the rent to the respondent. The non-compliance of that order is not a ground on which eviction could be ordered or has been ordered under S. 11 (4) of the Act. The proceedings under S. 9(3) and Section 10 cannot be mixed up with the proceedings u/s 11(1) read with Section 11(4). Moreover, the scope and ambit of the order purportedly passed u/s 9(3) and the order passed in the application u/s 11(1) are quite different. The order passed u/s 9(3) does not refer to any specific period from which the arrears of rent payable by the petitioner to the respondent. However, having regard to the back ground in which the petition u/s 9(3) was filed by the petitioner and the tenor of the order, the direction given in R.C. No. 613 of 1992 to deposit the rent could only be confined to the admitted rent due and payable from Oct. 1991. But the order u/s 11(1) directs deposit of the arrears of rent right from the date of commencement of the tenancy i.e. from 18-8-1988. The order passed u/s 9(3) differs from the order passed u/s 11(1) both with regard to nature of determination involved as well as the quantum of liability declared. Thus, viewed from any angle the respondent cannot press into service the order passed u/s 9(3) for the purpose of sustaining the impugned order u/s 11(4).

In the result, the revision petitions are allowed. The petitioner has already deposited the rents due from him up to the date of filing the appeal i.e. up to July, 1994 and it is stated by the learned counsel for the petitioner that during the pendency of the appeal and till this date, the petitioner has been depositing the rent of Rs. 300/- month after month. It is therefore, submitted that no arrears are payable by the petitioner after the the appeal was filed. The learned counsel for the respondent is not in a position to deny or affirm the statement of the petitioner''s counsel. However, it is directed that if there are any arrears due subsequent to July, 1994, the same shall be deposited with the Rent Controller within a period of 15 days from today. In default, the Rent Controller shall pass an order u/s 11(4) of an application filed by the respondent-landlord. I also direct that the future rents shall be regularly paid every month on the first of the succeeding month and in case of default, the Rent Controller can pass an order u/s 11(4) on an application filed by the respondent. I also direct that the main R.C.C., itself shall be disposed of within six months from the date of receipt of a copy of this order. No costs.

Petitions allowed.