Munni Begum @ Khatija Begum and Another vs Khader Ali and Another

P. Venkatarama Reddi, J.—These two revision petitions u/s 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act arise out of the orders passed by the 3rd Additional Rent Controller, Hyderabad in I.A No. 420 of 1994 in R.C No. 460 of 1993. The first order was passed on 22-8-1994 u/s 11 (1) read with Section 11(3) of the Act. The second order was passed on 6-9-1994 directing the petitioner-tenant to vacate the premises within one month for failure to deposit the rents as per the earlier order. The two appeals preferred against the said orders having been rejected these Civil Revision Petitions are preferred, by the tenant.

The respondents-landlords filed R.C No. 660 of 1993 seeking eviction on the ground of wilful default in the payment of rents. Pending the petition, the landlords filed an application u/s (1) of the Act to direct the petitioners-tenants to pay Rs. 19,000/- towards arrears of rent for 38 months from 1-5-1991 to 30-6-1994 at Rs. 500/- per month. The tenants pleaded that the rent was only Rs. 400/- per month. They further pleaded the rent was being paid regularly and the water and electricity charges were also being paid regularly to the concerned Departments. According to the petitioners, they paid the rents up to August,1993 and thereafter on the refusal of the respondents to receive the rents for September and October, 1993, they sent the same by Money Order which was also refused and that after receiving the notice in the R.C. the arrears of rent of Rs. 4,400/- i.e., from September,1993 to July,1994 were paid to the respondents'' Counsel. The plea of the tenants that they were paying or tendering the rent during the crucial period was rejected by the Rent Controller as well as the Appellate Court. It was rightly pointed out by the Courts below that the fact that the respondents were passing receipts whenever they paid rents was not denied by the petitioners and as the petitioners failed to produce any receipts showing the payment of rents for the period in question, it must be taken that there was failure to pay the rents. It was also observed that there was no proof of payment of water and electricity charges. The Rent Controller proceeded on the basis that the rent was Rs. 400/- as per the version of the tenant and after deducting the amount of Rs. 4,400/- adjusted towards the rent from September, 1993 to July, 1994 he held that there was default for the period from 1-5-1991 to 31-8-1993. The petitioners-tenants were directed to deposit the said amount on or before 6-9-1994 and also the future rent at Rs. 400/- per month on or before 5th of succeeding month. As there was failure to pay the rent as directed or any part thereof, eviction was ordered on 6-9-1994.

The appellate Court while agreeing with the Rent Control Court that there was default in the payment of rents during the crucial period observed that the petitioners failed to comply with the order even by the date of filing the appeal or thereafter. As the payment of arrears of rent is a condition precedent for contesting the eviction petition and the arrears were not deposited or paid despite the order of the Rent Controller, the appellate Court held that the eviction was rightly ordered.

The learned Counsel for the petitioners could not make out any substantial ground to attack the finding of the Courts below that there was failure to pay the rent during the period May,199(Sick) to August,1993. The finding reached by the Rent Controller as well as Appellate Court on the basis of the pleadings and failure to produce the receipts is unassailable. However, the main contention urged by the learned Counsel for the petitioners is that the appellate Court should have allowed time for depositing the arrears of rent while dismissing the appeal and conditionally set aside the order of eviction. It is contended that the petitioners were contesting their liability to pay the rents as well as the quantum of rent and until and unless the determination becomes final, there was no need to pay or deposit the arrears of rent. It is further contended that the Appellate Court went wrong in observing that the appeal itself was not maintainable in the absence of deposit of rents. In this -connection, reliance is placed on the decision of this Court in Hasham Ali v. Md. Basheeruddin, 1981 (1) Answer. 336.

I am unable to accept the argument of the learned Counsel for petitioners. Neither the language nor the spirit of Section 11 of the Act would lend support to the petitioners'' contention. When once the dispute as regards the quantum of rent payable and the factum of payment is resolved by the Rent Controller on a summary enquiry under Sub-section (3) it is the duty of the tenant to comply with the order. If the tenant fails to pay or deposit the rent as per the order passed by the Rent Controller the consequences envisaged by Sub-section (4) emerge. Unless the tenant shows sufficient cause for his failure to deposit the rent, the Rent Controller should stop all further proceedings and make an order directing to put the landlord in possession of the building. It is worthy of note that on 6-9-1994, when the LA, filed u/s 11(1) came up for further orders, the petitioners did not come forward with any explanation for non-payment of rent. Nor could they obtain an order from the appellate Court suspending the order passed on 22-8-1994. Even during the pendency of the appeal, no steps were taken to deposit the rent. There is nothing in the provisions of Section 11 (1) to (4) relieving the petitioner of the consequences of his own default in the payment of rent even after the dispute was resolved by the Rent Controller. The pendency of appeal does not ipso facto grant him the immunity from reaping the consequences of default. The petitioner has obviously taken a calculated risk and pursued the appeal without paying anything towards the arrears of rent despite the direction of the Controller. The petitioners could have very well deposited the rents even if they/wanted to test the correctness of order passed by the Rent Controller in appeal. There is nothing in the scheme of Section 11 which obliges the appellate authority to pass an order granting time for payment of arrears of rent while rejecting the appeal against the order of the Rent Controller, more especially when no explanation whatsoever was given for not depositing the rents and there was practically no defence for the default committed by the tenant. If the interpretation sought to be placed by the petitioners'' Counsel is to be accepted, the salutary provisions of Section 11 meant to ensure prompt payment of rents during the pendency of the eviction petition will be virtually defeated. A recalcitrant tenant can successfully evade payment of rent lawfully payable by him despite the direction of the Rent Controller till the completion of several rounds of litigation and then seek the aid of law to deposit the arrears of rent atleast after the termination of the entire gamut of litigation. This is hardly what was intended by the law-makers. Either on facts or on law, I do not think that the petitioners are entitled to any such indulgence.

The decision sought to be relied upon by the petitioners'' Counsel turns on the question whether the appeal u/s 22 is maintainable without the deposit of rent in relation to an order directing payment of rent u/s 11(1) of the Act. The question of maintainability of appeal need not be gone into here as the appeal was entertained and heard on merits, though certain observations were made that the appeal itself was not maintainable. In the above case, it was held by P.A. Chowdari, J. that the limitation u/s 11(1) would not apply to the tenant''s appeal filed against the orders of Rent Controller passed u/s 11(3) of the Act. In that view of the matter, the learned Judge directed the appellate Court to take the tenant''s appeal on file and dispose it of on merits. This decision has no bearing on the question whether the appellate Court should postpone the effect of the Rent Controller''s order passed u/s 11(3) while disposing of the appeal.

In the result, I find no merit in these Civil Revision Petitions and they are accordingly dismissed. No costs. 4 months'' time is granted for vacating the premises.