M.V.S. Prasada Rau vs K. Mangamma

V. Bhaskar Rao, J.—This is a tenant Revision Petition arising out of the judgment in R.A.No. 331 of 1990 on the file of the Chief Judge, City Small Causes Court, Hyderabad dated 22-11-1993. The land lady''s eviction petition in R.C. No 2324 of 1984 on the file of the IV Additional Rent Controller, Hyderabad was allowed on the ground that the tenant committed wilful default in payment of rents and the said finding has been confirmed in the impugned judgment by the Appellate Court. Hence, the revision petition by the tenant.

The revision petitioner-tenant has been in occupation of the demised premises,which is a residential house, on a monthly rent of Rs. 180/- per month since 1975. The and lady asserted that the rent is payable before 10th of every month as the tenancy is a oral one, but the tenant averred that the land lady has been accepting the rents as per her convenience and, hence, the irregular payment of rents did not constitute wilful default. The tenant sent a demand draft for Rs. 2,160/- being the rent for 12 months from September, 1982 to August, 1983 through a letter dated 19-5-1982.Both the Courts below noticed that the rent from September, 1983 to April, 1984 was not paid at that time. Then the tenant sent another letter dated 15-11-1985 stating that the rent from August, 1983 to October, 1985 (27 months) was payable and he sent a sum of Rs. 1,260/- and appropriated the balance of Rs. 3,600/- which said to have been spent towards the repairs and white washing etc., during the year 1982. The land lady asserted that deduction of Rs. 3,600/- by the tenant towards the alleged repairs and white washing etc., is illegal and unwarranted and it was done without her consent. It is also her case that the rents for the months of November and December, 1985 are also not paid. Thus, the default is said to have been committed in the above manner. The tenant denied the same and averred that there are no arrears of rent and no wilful default was committed in payment of rents. That is insofar as the main ground of wilful default is concerned.

The land lady also claimed the demised Premises on the ground of bona fide requirement for Personal occupation and the tenant contested that ground too. On a consideration of the evidence on record, both the Courts below found concurrently that the land lady could not make out the bona fide requirement. Therefore, it is not necessary to go into that aspect.

The short point that arises for consideration in this Revision Petition is Whether the tenant- Revision Petitioner committed wilful default in payment of rents?

The learned counsel for the Revision Petitioner, Mr. Rama Mohana Rao for Mr. P.M. Gopala Rao, contended firstly that the land lady has been accepting the rents though tendered irregularly without any demur or protest, and, hence, she is not entitled to seek eviction on that ground. When the learned counsel for the land lady- Mr. Y. Jagan Mohan Pointed out that both the Courts below concurrently found that the tenant committed wilful default, it argued by the learned counsel for the petitioner - that the High Court has power to interfere with their concurrent findings of fact and relied on a judgment of this Court in P. Venkata Krishna Rao v. Dr. B. Seetaram 1992 (2) ALT 284.

In P. Venkata Krishna''s case 1992 (2) ALT 284, a Division Bench of this Court held that the High Court has power to interfere with the concurrent findings of fact when they suffer from inherent defects and are based on irrelevant material and baseless assumptions. In view of the above judgment, it is for consideration whether the Courts below committed any errors which can be said to be " inherent defects or are based on irrelevant material and baseless assumptions'' so as to apply the above Ruling.

I perused the evidence on record. P.W.1-K. Mangamma - is the land lady. P.W.2-K. Venkata Rao- is her son-in-law. None is examined for the revision petitioner/tenant. Exs.P-1 and P-2 are marked for the landlady and Exs.Rules 1 to 9 marked for the tenant.

Exs.Rules 1, 3, 5 and 6 are office copies of four letters which were sent by the tenant through which rents for various periods were remitted through demand drafts. Ex.Rule 5 is dated 19-5-1984 (original thereof is filed by the landlady and marked as Ex.P-1). A draft for Rs. 2,160/- towards rent from September, 1982 to August, 1983 was sent. It is not worthy that the rent from September, 1983 to April, 1984 was already due by that time, but it was not remitted and this aspect has to be kept in view. It will be discussed again in the relevant context.

The next period under consideration is 27 months period from August, 1983 to October, 1985. 27 months rent is aggregating to Rs. 4,860/-, out of which Rs. 3,600/- is deducted by the tenant purporting to have spent for the repairs and white washing etc., and the balance of Rs. 1,260/- is sent through Ex.Rule 3 (original being Ex.P-2). Thereafter the rent for the period from November, 1985 to July, 1986 was remitted through a banker''s cheque dated 14-8-1986 and sent along with Ex.R-6. The Rent Control Petition was filed in the month of August, 1986. The rent from August, 1986 onwards does not appear to have been paid. The correspondence shows that the tenant not filed that he would deposit the rent in the Court of IV Additional Rent Controller from August, 1986 onwards but the Court record does not show that the same has been deposited in the Court. The proceedings dated 8-8-1990 and the order of the IV Additional Rent Controller dated 8-8-1990 show that the tenant has been directed to pay the arrears of rent that had accumulated on or before 16-8-1990, but the record does not show that he has complied with the above direction.

The evidence in this case is one sided inasmuch as the petitioner examined herself as P.W.1 and her son-in-law is examined as P.W.2. Both of them asserted that the tenant has been irregular in payment of rents right from the beginning and that they demonstrated the same by filing Exs.P-1 and P-2. The Payment of the rents for various periods and the defaults in payment of the rents are all set out in the above para and factually they are not in dispute. Since the learned counsel for the revision petitioner strenuously argued that this is a fit case for interfering with the findings of fact though they are concurrent, I perused the entire evidence, both documentary and oral. Suffice it to say that there is not even one instance of payment of rent either on or before 10th of the following month as per the agreement or by the end of that month as contemplated by law. In other words, the rents were being paid irregularly at all times. It is of course true that the same were accepted by the landlady, but it is in their testimony that in spite of demand, the tenant has been irregular in payment of rents. The word ''demand'' occurring in the depositions of P.Ws.1 and 2 appeard to denote that there was protest for the irregular payment. That apart, admittedly the rent for the period of 12 months from September, 1982 to August, 1983 being Rs. 2,160/- was paid on 19-5-1984. By 19-5-1984 the rent for September, 1983 to April, 1984 had also become due, but strangely the tenant did not pay the rent for that period along with the rent from September, 1982 to August, 1983. There is no explanation for this default. Even if the contention that the arrears of rent were accepted without any demur or protest is to be accepted, it may be true in respect of the rent for the period from September, 1982 to August, 1983. When the rent that became due by 19-5-1984 viz., from September, 1983 to April, 1984, is not paid at all and no explanation is coming forth from the tenant (be it noted that he did not go into the box), the only inference that can be drawn is that the default is wilful default and both the Courts below have rightly held that the tenant committed wilful default in payment of rent.

The learned counsel for the revision petitioner cited judgments reported in B. Sanyasi Raju v. K. Kurmanna 1983 (2) ALT 62. Rashik Lal and Others Vs. Shah Gokuldas, and Swami Ratanbabu Vs. Wamanrao Shankarrao Deshmukh, for the proposition that were the landlord had received rent at irregular intervals without any protest, such payments of rent do not constitute wilful default. With respect I hold that the ratio laid down by the above judgments can be applied to the extent of rents already paid. As already discussed above, the rents for the period from September, 1982 to August, 1983 were paid on 19-5-1984 and received by the landlady and to that extent there may not be wilful default, but what is note worthy is that the rent for the subsequent period from September, 1983 to April, 1984 which became due by 19-5-1984 was not at all paid and to that extent, the default is definitely a wilful default.

Then the tenant did not pay rent for 27 months continuously. His case is that he has occupied the fait for 10 years and he was entitled to deduct 20 months rent at the rate of Rs. 180/- per month aggregating to Rs. 3,600/- towards repairs, white washing and maintenance and therefore he deducted the same from out of 27 months rent viz., Rs. 4,860/- and sent the balance of Rs. 1,260/- through a bank draft enclosed to Ex.P-2 (office copy is marked as Ex.Rule 3). Both the Courts below have concurrently found that the tenant was not entitled to appropriate the above amount towards repairs, white washing and maintenance etc. The learned counsel for the revision petitioner assailed the above finding taking the aid of Section 19 of the Rent Control Act on one hand and Section 212 of Hyderabad Municipal Corporation Act, 1955. It is vehemently argued that the tenant is justified in appropriating the amount of Rs. 3600/- as he had spent much more for the repairs and more so when he has been in occupation of the premises during the last 10 years. On the other hand, Mr. Jaganmohan, learned counsel for the landlady, contended that such a procedure in unknown to law and the requirements of Section 19 of the Rent Control Act are not satisfied by the tenant and therefore, appropriation of the entire amount of Rs. 3,600/- is to be held as illegal and that amounts to wilful default in payment of rent.

It is necessary to have a look at Section 19 of the Rent Control Act.

"Section 19: Failure by landlord to make necessary repairs:-

If a landlord fails to make necessary repairs to the building within a reasonable time after notice is given-

(a) by the authorised officer in respect of a building of which the Government shall be deemed to be the tenant under Sub-section (6) of Section 3:

(b) by the tenant in respect of any other building;

the authorised officer aforesaid may, in the case referred to in Clause (a), make such repairs or have them made by the allottee and deduct the cost thereof from the rent payable for the building or ask the allottee to make such a deduction from the rent payable; and the Controller may, in the case referred to in Clause (b), direct, on application by the tenant that such repairs may be made by the tenant and that the cost thereof may be deducted by the tenant from the rent payable for the building:

Provided that the cost of repairs, and the deduction thereof which the authorised officer or the Controller, as the case may be, may authorise shall not exceed in any one year one-twelfth of the rent payable in respect of the building for that year".

A bare reading of the above provision indicates that the tenant is expected to give a notice to land lord requiring him to make necessary repairs to the demised building and after waiting for a reasonable time, he has to approach the Rent Controller for necessary directions and only on the directions of the Rent Controller, the tenant may undertake the repairs and in such a case he will be entitled for deduction of the cost of the repairs which shall not exceed in any one year one-twelfth of the rent payable. Turning to the case on hand, it is not the case of the tenant that he gave a notice to the landlady to effect any repairs or that he approached the Rent Controller for necessary directions or that he effected repairs in accordance with the directions of the Rent Controller. In any event it is mandated by the above provision that the cost of repairs shall not exceed in any one year one-twelfth of the rent payable. That means that in any one year, a month''s rent can at the most be deducted towards cost of repairs subject to the above procedure. Evidently, appropriation of Rs. 3,600/- from out of 27 months rent by the revision petitioner/ tenant is contrary to law and the same has to be held as wilful default in payment of rent.

As regards the other provision viz., Section 212 of Hyderabad Municipal Corporations Act relied on by the revision petitioner, I find that it is an irrelevant argument and it cannot be considered for a moment.

Before parting with this matter, it is pertinent to mention that apart from the aforesaid amount of Rs. 3,600/- which is illegally appropriated by the tenant, there are arrears of rent which ought to have been deposited on or before 16-8-1990, but there is no record to show that the tenant has complied with the above direction or that he deposited the rent for the subsequent period and that itself is a ground u/s 11 of the Rent Control Act to put the landlord in possession of the building.

In view of my above finding, I do not consider it necessary to go into the other point relating to the bona fide requirement of the premises by the landlady.

On an over all consideration of the material on record, I am satisfied that the findings of both the Courts below regarding wilful default by the revision petitioner are well founded and fit to be confirmed. I do not find any merit in any of the contentions raised on behalf of the revision petitioner and hence this revision petition fails.

In the result, the revision petition is dismissed with costs. The tenant is directed to vacate the premises within two months from today, failing which the landlady shall be entitled to recover possession in due course of law.