P.Shantha vs P. T. Vikram

This Civil Revision Petition under Article 227 of the Constitution of India is directed to set aside the order, dated 30.11.2017, in R.A.No.151 of 2015, on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad.

Heard the learned counsel for the petitioners and the learned counsel for the respondent. Perused the record.

Briefly noted, the facts are that the petitioners are the landlords and the respondents are tenants. The petitioners filed R.C.No.168 of 2014 under Section 10 (2) (i) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short “the Act”) for eviction on the ground of willful default in payment of rent in respect of Mulgi No.7 (Rear Portion) in ground floor of the premises Nos.4-3-83 to 85, in the building known as Laxmana Business Centre admeasuring 255 square feet situated at Chandkhan Street, Old Bhoiguda, Secunderabad.

According to the petitioners, the schedule premises was let out to the respondent on monthly rent of Rs.1100/- by late P.Prabhakar, husband of petitioner No.1 and father of petitioner Nos.2 to 5. The respondent is carrying the business under the name and style of M/s.Kemplast Asbestos. The respondent used to pay monthly rent to late P.Prabhakar till the end of June, 2014 and from July, 2014 onwards stopped paying the rents on the ground that he entered into agreement of sale, dated 03.12.1998, with said Prabhakar to purchase the schedule premises.

The respondent filed a counter admitting that he is tenant in the petition schedule mulgi on monthly rent of Rs.1100/- and carrying on business. It is stated that the husband of first petitioner late P.Prabhakar agreed to sell the schedule premises and executed agreement of sale dated 03.12.1998 and received advance sale consideration of Rs.1,46,000/- by way of cheque. The respondent denied that he has committed default in payment of rent. He has paid rents from July, 2014 to February, 2015 at Rs.1100/- per month by way of Demand Draft dated 02.01.2015 on the first date of hearing to show his bonafidees.

The Additional Rent Controller, Secunderabad has framed the following points for consideration:

i) “Whether the jural relationship of petitioner and respondent is proved as landlord and tenant?

ii) Whether the respondent committed default in payment of rent which is not willful?

iii) Whether the respondent committed willful default in payment of rent, if so, he is liable to be evicted from the petition schedule property or not?

iv) To what relief?

During enquiry, PW.1 and Exs.P-1 to P-4 were marked on behalf of the petitioners and R.W.1 and RW.2 were examined and Exs.R-1 to R-3 were marked on behalf of the respondent.

On consideration of the evidence available on record, oral and documentary, the Additional Rent Controller held on point Nos.1 to 3 that the respondent has committed willful default in payment of the rent. However, on point No.4, the respondent was directed to vacate and handover the vacant and peaceful possession of the petition schedule to the petitioners within a period of (60) days from the date of order and allowed the petition vide order, dated 24.07.2015. Aggrieved by the same, the respondent preferred R.A.No.151 of 2015 before the Chief Judge, City Small Causes Court, Hyderabad. By the impugned order, the appellate authority allowed the appeal setting aside the order of eviction passed by the Additional Rent Controller. Challenging the said order, the present Civil Revision Petition is filed.

Learned counsel for the petitioners submits that the respondent/tenant committed willful default in payment of rents and the Additional Rent Controller has rightly appreciated the oral and documentary evidence and ordered for eviction of the respondent/tenant. As the appellate Authority committed error by setting aside the order of eviction, he prays to allow the revision.

Learned counsel for the respondent submits that the order impugned does not suffer from any material irregularity or illegality and the appellate Court has rightly held that there is no willful default committed by the respondent. As such, he prays to dismiss the revision.

Thus, after hearing the submissions of both the counsel, after perusing the material on record, the only point that arises for consideration is; whether the impugned order is sustainable in law?

The term ‘wilful’ or what constitutes ‘wilful default’, however, has not been defined under the Act. In Gundu Premsagar v. Nagabandi Jayashankar 2002 (1) ALD 554 while answering a reference, Division Bench of this Court at para Nos.15, 16 and 17 held as under:

Interpreting the term 'wilful' as above, the Apex Court in Sundaram Pillai, Etc vs V.R. Pattabiraman Etc(1985 AIR 582) held that default per se cannot be construed as wilful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the tenant, if the payment has been made before the institution of the suit, the cause of action for instituting the suit, will vanish. Therefore, according to the Apex Court, if the payment has been made before the institution of the suit, the same would not amount to 'wilful default'.

The above ratio was followed by the Apex Court in Dakaya Alias Dakaiah v. Anjani (1995 SCC (6) 500), wherein the tenant on receipt of demand of payment from the landlord, paid the arrears by way of bank draft before the institution of the proceedings. The Apex Court held that eviction cannot be ordered in such a case.

The Apex Court had again the occasion to consider the said question under the provisions of the Act in K.A. Ramesh v. Susheela Bai (……supra). In the said case, the tenant therein sent a bank draft for the arrears of rent from July, 1988 onwards on 2-2-1989 and it was encashed by the landlord. Eviction petition was filed on 6-2-1989. The Apex Court held that once the bank draft for the full amount of arrears was encashed by the landlord, the eviction proceedings would become infructuous. Referring to the proviso appended to Section 10(2) it was held:

....by sending a bank draft on 2-2-1989 when there was no litigation between the parties, full payment of arrears was tendered. That was accepted and realised pending the eviction proceedings. This clearly shows that there was no default at all much less wilful default on the part of the tenants in paying the rent for the months from July, 1988/12/1988. Consequently, the eviction proceedings were not required to be proceeded any further as the aforesaid proviso shows that even if the rent was not paid, there was a locus poenilentiae with the appellant-tenants to get a reasonable time not exceeding fifteen days for paying up the arrears by showing that default was not wilful and if during the time granted by the Court the default was made good, the application for possession, in that eventuality, has to be rejected.....

Considering the above decisions, in the instant case, there is no dispute as regards to the tenant and the landlord relationship between the parties in respect of petition schedule premises. It is also not in dispute that tenancy is oral one commenced about 18 to 20 years ago on monthly rent of Rs.1100/-. Admittedly, the petition schedule premises belong to one P.Prabhakar, the husband of petitioner No.1 and father of petitioner Nos. 2 to 5. The said Prabhakar died intestate on 05.07.2014. The main contention of the petitioners is that the respondent has committed default in payment of monthly rent from July, 2014 to November, 2014 at Rs.1100/- per month.

A perusal of the evidence of the respondent, in his evidence he stated that he has not committed any default in payment of rents and during the life time of P.Prabahakar, who was the landlord and the husband of petitioner No.1 entered into an agreement of sale of the petition schedule mulgi for a sale consideration of Rs.3.00 lakhs and executed an agreement of sale, dated 03.12.1998, after receiving Rs.1,46,000/- as advance which was paid by way of cheque. Undisputedly, the respondent also filed O.S.No.19 of 2015 on the file of I Junior Civil Judge, Secunderabad on the strength of agreement of sale seeking the relief of specific performance of the said agreement of sale by receiving balance sale consideration of Rs.1,54,000/-.

A perusal of the evidence of the petitioners, petitioner No.2 is examined as PW.1 and in his cross-examination, he admitted that during the pendency of R.C.No.168 of 2014 after the first date of hearing, he has furnished his bank account number to the respondent and he has deposited rent up to February, 2015. As rightly appreciated by the appellate authority, the deposit of the rents by the respondent on the first date of hearing as stated supra, would show the conduct of the respondent in payment of rent. It appears that since there was an agreement of sale between himself and deceased Prabhakar, the respondent might have committed delay in payment of rents. Subsequently, he deposited the rents immediately in the bank account of PW.1 up to September, 2015 and that there are no arrears of rent as on that date. The evidence further discloses that the respondent has not only paid the rents covering the period from July, 2014 to November, 2014, but also paid the rents up to September, 2015 in the month of April, 2015 in advance. The said evidence clearly shows that there was no default, much less, willful default on the part of the respondent. Further, in the instant case, placing reliance on the judgments cited supra, as the respondent has paid rents up to September, 2015 in the month of April, 2015 in the bank account of PW.1 including the alleged arrears of rent and the same was encashed by the landlord. As discussed supra, since there exists agreement of sale between late Prabhakar and the respondent, the delay in payment of rent for short period might have caused, but that itself would not amount to be a willful default on the part of the respondent in paying the rents. Therefore, the respondent has shown justifiable grounds for not paying the rents for five months and soon after the receipt of summons, he has deposited the entire amount. There is no allegation that the respondent committed any default for the past 20 to 30 years. The findings recorded by the appellate authority in setting aside the eviction order passed by the Additional Rent Controller do not warrant interference by this Court. Therefore, I do not find any illegality or infirmity in the impugned order warranting interference by this Court in exercise of its revisional jurisdiction.

In the result, the civil revision petition is dismissed. Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.