Saifulla Basha and Others vs Sakaray''s Dresses

Dubagunta Subrahmanyam, J.—These two Civil Revision Petitions are filed against the common order dated 15.7.1997 in C.M.A. Nos. 13 of 1994 and 43 of 1992 on the file of Subordinate Judge, Adoni, u/s 22 of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ''the Act'').

The facts leading to the filing of these revision petitions are as follows:

K. Md. Abdul Quayoom filed RCC.No.19 of 1988 on the file of the Re nt Controller-cum-Principal District Munsif, Adoni, seeking eviction of the resp ondent-tenant on two grounds. The first ground is that the respondent-tenant has not paid rent to the landlord for a period of five months from 6.7.1988 to 6.12.1988 deliberately and in spite of repeated demands by the landlord and he committed wilful default in payment of rent. The second ground is that the landlord requires the petition schedule building bona fide for his own use and occupation for starting a business in footwear. The respondent-tenant resisted the eviction petition. He pleaded that he has been regular in payment of rents, differences arose between the parties when the landlord demanded the enhancement of rent, to which the tenant has refused and the landlord collected the rent for July and August, 1988, without passing any receipt deliberately in order to create false evidence of default in payment of rent. He also pleaded that he sent two pay orders each for Rs.1800=00 along with a letter dated 1.12.1988 towards alleged arrears of rent as a matter of abundant precaution. The landlord returned the same. He also pleaded that he filed RCC.No.1 of 1989 u/s 8 of the Act, the said petition was allowed on 21.12.1989 and he has been depositing the rents regularly. He pleaded that the contention of the landlord that they require the building for starting business in footwear is with a view to throttle the tenant to squeeze more rent and the landlord filed the petition on false and invented grounds. During the pendency of the said eviction petition, the landlord Quayoom died and his legal representatives were brought on record as petitioners 2 to 7 in the said petition. In the additional counter filed, the tenant had taken the plea that the fifth petitioner is already in possession of the shop bearing No.18/340 wherein he is running a business in plastic wear and therefore even if the requirement is assumed to be bona fide, the petitioners-landlords are not entitled to seek eviction of the tenant from the petition schedule building.

On a consideration of oral and documentary evidence adduced by both the parties, the learned Rent Controller, by his order dated 10.8.1992, dismissed the said eviction petition. He held that there is no wilful default in payment of rents. He also found that the requirement of the landlords for their personal occupation for running a business is not bona fide. Aggrieved by that order, the landlords preferred CMA.No.43 of 1992 on the file of Subordinate Judge, Adoni.

The landlords filed another eviction petition in RCC.No.14 of 1992 seeking eviction of the respondent-tenant. The plea taken in this eviction petition is that during the pendency of RCC.No.19 of 1988, the tenant filed RCC.No.1 of 1989 u/s 8 of the Act seeking permission to deposit the rents into court, the said petition was allowed and the tenant was permitted to deposit the rents. It is further pleaded that the tenant has been depositing the rents once in three months or four months and some times once in five months. It is further pleaded that the tenant failed to deposit the rents for the months of March, 1989, March, April, May and August, 1990, to the credit of RCC.No.1 of 1989. It is pleaded that the tenant deposited the rents for December, 1991 to March, 1992 with a delay of two months and he deposited the rent of January, 1992 on 8.3.1992 and he deposited the rent for the month of May, 1990 on 5.7.1990 and thus the respondent intentionally committed wilful default in payment of rents and delayed payments. It is further pleaded that the tenant deposited Rs.2700=00 into court on 30.6.1992 for the months of April, May and June, 1992 and thus there is delay in payment of rents for the months of April and May, 1992. The respondent-tenant filed a counter denying the allegations. He pleaded that he has been depositing the rent into court well in advance on the due dates.

On a consideration of oral evidence adduced by both the parties, the Rent Controller dismissed the eviction petition by his order dated 14.6.1994. Aggrieved by that order, the landlords preferredCMA.No.13 of 1994 on the file of Subordinate Judge, Adoni.

The appellate court heard both the appeals together and dismissed both the appeals by common order dated 15.7.1997. Aggrieved by the order in CMA.No.13 of 1994, CRP.No.4784 of 1997 is filed. Aggrieved by the order in CMA.No.43 of 1992, CRP.No.4814 of 1997 is filed. As the points involved in both the CRPs are common and as the parties are common in both the CRPs, I am disposing of both the CRPs by one and the same order.

Regarding the ground of wilful default, it is the plea of the tenant that the landlord Abdul Quayoom received the rents for July and August, 1988, in person and did not pass any receipts deliberately with a view to build up the case for eviction of the tenant on the ground of wilful default in payment of rents. The two courts below held that there is no sufficient evidence adduced by the tenant to prove the oral payments allegedly made by the tenant. However, there is no dispute that long before eviction petition is filed, the tenant sent that amount by way of pay orders and the landlord refused to receive the same. There is also no dispute that subsequently for the rent payable upto December, 1988, the rent was sent by way of two demand drafts for Rs.1800=00 each by the tenant and the landlord refused to accept the two demand drafts sent by the tenant. Thereafter the landlord instituted the eviction proceedings in December, 1988, against the tenant. Immediately the tenant also filed a separate application u/s 8(5) of the Act in RCC.No.1 of 1989 on the file of the Rent Controller seeking permission to deposit the rents into court. He instituted the said proceedings after following the due procedure. The petition was allowed and the said order had become final.

Regarding the period of default pleaded in RCC.No.19 of 1988, it is clear that before the said eviction petition was filed, the tenant duly tendered the entire arrears of rent payable to the landlord by the time RCC.No.19 of 1988 was filed.

Regarding the plea of wilful default in payment of rent, the learned Advocate for the revision petitioners relied upon some decisions. In FATIMA BI Vs. MOHD.AKBAR HUSSAIN 1976 (2) An.W.R. (31), it was held that the tenant is not entitled to pay the rent at irregular intervals and even one month''s delay, if it is not accidental or unavoidable but it is the result of deliberate negligence or indifference, can form valid ground for eviction. In another decision in Hari Prasad Badruka Vs. Tellukunta Laxmi and Others, it was held that when rents are being deposited for a long time during the succeeding month without any explanation for delay, such payment amounts to wilful default. In another decision in Ganeshlal and Another Vs. Najamunnisa Begum and Others, this court held there is wilful default if the tenant habitually depositing the rents once in several months.

These decisions, in my considered view, will not come to the aid of the landlords. Regarding the ground of wilful default in payment of rent, there is a decision of the Supreme Court in K.A. Ramesh and Others Vs. Smt. Susheela Bai and Others, . In that case the eviction of the tenant was sought for on the ground of wilful default. Before the landlord commenced eviction proceedings, the tenant has sent entire arrears of rent from July, 1988 to December, 1988, by a bank draft to the landlord. The landlord encashed the demand draft after he instituted the eviction proceedings. The Supreme Court observed that by sending demand draft, when there was no litigation between the parties, full payment of arrears was tendered and that was accepted and realized pending the eviction proceedings. The Supreme Court held that this clearly shows that there was no default at all much less wilful default on the part of the tenant in paying the rent for the months from July, 1988 to December, 1988. The Supreme Court held that the eviction petition requires to be summarily rejected. There is a binding Full Bench decision of A.P. High Court in Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao and Another, It was held that eviction petition does not sustain if entire arrears of rent prior to the filing of eviction petition have been paid. In the present case, as already noticed, before eviction petition was filed in December, 1988, the tenant had tendered the entire arrears of rent by way of demand drafts. In view of this binding judgment of A.P. High Court, the tenant is not liable to be evicted on the ground of wilful default in payment of rents.

Same ground of wilful default in payment of rent is taken in the second eviction petition filed by the landlord during the year 1992. The alleged period of default in payment of rents taken in 1992 proceedings is the period covered by the pendency of 1988 eviction proceedings. Therefore, it is a subsequent development during the pendency of the first eviction proceedings. In the Full Bench decision of A.P. High Court in Vinukonda Venkata Ramana''s case (5 supra), and decision of Supreme Court in K.A. Ramesh Vs. Sushela Bai (4 supra), it has been held that if there is any default committed subsequent to the filing of the eviction petition in payment of rents, the same can be made a ground for ordering eviction provided an application is filed u/s 11 of the Act to put the landlord in possession. During the pendency of 1988 eviction petition, the landlords did not take recourse to the provisions contained in Section 11 of the Act. As they did not invoke the said provision, in view of the Full Bench decision of A.P. High Court noticed 5th supra, the landlords are not entitled to seek eviction of the tenant on the ground of wilful default in payment of rents. Even otherwise it is to be stated that it is in evidence in RCC.No.1 of 1989 filed by the tenant, some times he was depositing the rent in advance for certain months and it is also in evidence that by the time 1992 eviction petition is filed, there is no arrears of rent payable by the tenant. Therefore, seen from that angle also, in view of the decisions, referred supra, the second eviction petition is not maintainable.

The second ground pleaded in the first eviction petition is that the landlord requires the building for his personal occupation to commence his own business. During the course of the trial, it was clearly established that the landlords are in possession of another premises running their own business which is very close to the disputed premises. Therefore, as the landlords are having their own accommodation for their business, the two courts below concurrently held that the requirement of the landlord is not bona fide. It is the contention of the revision petitioners that the daughters of the deceased landlord Abdul Quayoom are doing their business in another premises and the son, namely, the fifth petitioner in 1988 eviction proceedings requires the disputed premises for his own business and this requirement of the landlords is not properly appreciated by the two courts below.

In this regard the appellate court relied upon a decision of this Court in A. Apparao Vs. Eswaramma (1989 (2) APLJ 190). It was held as follows:

"The occupation of any member of the family must be deemed to be the occupation of the landlord. It makes no difference whether it is the husband or the wife or the children that are in possession of the non-residential building. Even if the building is in occupation of one of the members of the undivided family, the occupation must be construed as that of every member of the family including the wife. ''Family'' does not mean a Hindu joint family and the concept of Hindu Law cannot be imported. It cannot be said that since the wife is not a member of the Hindu joint family, the husband or sons possession cannot be said to be that of the wife. As already states supra, if such a construction is placed, then the sons or the husband''s requirement would not be the requirement of the landlord in which case she could not be entitled to get the tenant evicted. In the instant case, the husband and the son of the landlady are doing business in two non-residential buildings in the same city and she cannot ask for possession of a third building, which is in the possession of the tenant on the ground that another son wants to start a new business".

As the fifth petitioner in his evidence admitted that his sisters, who are co-petitioners in the eviction petitions, are running a business in another premises, it is not open for the landlords now to claim the possession of the disputed premises on the ground of their bona fide requirement for their personal occupation.

The learned Advocate for the respondent-tenant relied upon a decision of Supreme Court in Smt. Fatima Bee Vs. Mahamood Siddiqui and Mohd. Omer Siddiqui, wherein it was held that when there is no misreading of evidence by lower courts, concurrent findings recorded as to bona fide requirement of landlady to carry on her business cannot be reversed in a revision petition.

It is necessary to point out another important fact in this connection. After the death of the original landlord Quayoom, his legal representatives in their capacity as owners of the disputed premises filed second eviction petition during the year 1992. By that time his daughters were running a business in another premises. In that second eviction petition, for the reasons best known to them, the landlords-revision petitioners did not seek eviction of the tenant on the ground that the disputed premises is required for their personal occupation to enable the fifth revision petitioner to carry on his separate business in that disputed premises. If really the petitioners bona fide require the possession of the disputed premises for their personal non-residential accommodation to carry on business, they would not have failed to take that plea in the second eviction petition. Absence of such a plea in the second eviction petition indicates that the landlords are not in need of the possession of the disputed premises for their personal occupation.

The learned counsel for the petitioners relied upon a judgment of the Supreme Court in SHAMA PRASHANT RAJE Vs. GANPATRAO & OTHERS 2000 (6) Sup 444. It was held that if inferior tribunal has committed manifest error by mis-construction of documents, High Court will be fully justified in interfering with such findings. In the present case, it is not shown to this court that either the appellate court or the Rent Controller committed any manifest error and there was any mis-construction of any document produced by either of the parties. Therefore, this decision also will not come to the aid of the revision petitioners. Viewed from any angle, I do not find any reasons to interfere with the concurrent findings of fact recorded by the two courts below either on the ground of wilful default in payment of rents or bona fide requirement of the landlords for possession of the disputed premises for starting a business by one of the members of the family. There are no grounds to set aside the orders of the courts below. I do not find any merits in both the revision petitions.

In the result, I dismiss both the Civil Revision Petitions. No costs.