Full Judgment Text
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CASE NO.:
Appeal (civil) 6359 of 1999
PETITIONER:
M/S. SHRIKRISHNA OIL MILL
Vs.
RESPONDENT:
M/S. RADHAKRISHAN RAMCHANDRA
DATE OF JUDGMENT: 09/01/2002
BENCH:
R.P. Sethi & S.N. Phukan
JUDGMENT:
Phukan, J.
This appeal by special leave is by the tenant. The suit
premises were taken on rent by the appellant at a rent of Rs.1500/-
per year for the purpose of running an oil mill. After the expiry of
period of lease, the tenancy continued. The respondent-landlord filed
an application on 25.11.1981 under Section 15(2)(ii) of Hyderabad
Houses (Rent, Eviction and Lease) Control Act, 1954 (for short ’the
Act’) before the Controller for the eviction of the appellant on the
ground of default in payment of rent since 1.11.1978 till the date of
filing of the application. Prior to the filing of the present eviction
application, the respondent filed a Civil Suit on 11.08.1981 for
recovery of arrears of rent for the period between 1.11.1978 to
29.9.1981 amounting to Rs.4250/- and on 7.10.1981 appellant
appeared before the court and deposited the amount which was
accepted by the respondent. Both the Rent Controller and the
appellate authority held that the appellant was a defaulter and
accordingly ordered for his eviction. The Revision Petition filed by the
appellant-tenant before the High Court under Section 26 of the Act
was also rejected by the impugned judgment.
We may state here that by order dated March 3, 2000,
this court recorded the admitted position that possession of the suit
premises was already obtained by the respondent, therefore, directed
that pending this appeal, respondent shall neither alienate the
property nor induct anyone else in the suit property till final disposal
of the appeal.
We have heard the learned counsel for the parties.
The short question to be decided in this appeal is whether
the appellant was a willful defaulter of the rent on the date of filing of
the application for eviction. From the impugned judgment, we find that
the contention raised on behalf of the landlord that after the expiry of
the yearly lease the appellant became a monthly tenant was rejected
by the High Court holding that the appellant-tenant continued to be a
yearly tenant. According to the High Court rent was to be paid within
one month after end of the yearly tenancy. In arriving at the above
decision, the High Court relied on sub-section (2) of Section 15 of the
Act. On the question of default, the Court was of the view that there
were two defaults, first one being on the completion of the year from
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1.11.1978 to 20.10.1979 and second being from 21.10.79 to
7.10.1980. It was held that there was a clear default on the part of
the appellant as the arrears of rent was paid by the appellant when
he appeared in the regular Civil Suit on 7.10.1981 and not within one
month of the end of the yearly tenancy. The High Court also found
fault with the appellant as after filing of the application for eviction the
landlord was required to file civil suits for recovery of rent for
subsequent periods and therefore held that tenant did not care to pay
rent as and when it became due to avail the protection of the
provisions of law. On these facts it was held that the default was
willful.
Learned counsel for the appellant has contended that as
before the date of the filing of the application for eviction, the rent for
the period in question was paid by the appellant to the respondent-
landlord in the civil suit which was filed for recovery of the arrears of
rent, the application for eviction was not maintainable. Per contra,
learned counsel for the respondent has strenuously urged that
appellant never paid rent on the due date and the respondent had to
file civil suit for recovery of rent and therefore appellant was a willful
defaulter. In support, learned counsel has placed reliance on two
decisions of this court in S. Sundaram Pillai & Others versus V.R.
Pattabiraman & Others [1985 (1) SCC 591] and Teegala
Satyanarayana versus G.S. Bhagwan [1994 Supp (3) SCC 741]. It
is not disputed that arrears of rent from 1.11.1978 were accepted by
the landlord in the said civil suit without any protest. We may state
here that all the courts below accepted that the rent for the period in
question was received by the landlord before filing of the present
eviction petition but found the appellant to be defaulter as he did not
pay rent on the due date and also after filing of the eviction petition
for which the landlord had to file civil suits.
Learned counsel for the appellant has placed reliance on
a decision of three Judge Bench of this Court in S. Sundaram Pillai
& Others versus V.R. Pattabiraman & Others [1985 (1) SCC 591].
In that case though the tenant had committed default but he had paid
the entire rent before filing of the suit by the landlord. The court
observed that in fact, the suit for eviction was filed by the landlord
only to penalise the tenant for having defaulted in the past and,
therefore, it was held that such a suit cannot be entertained because
once the entire dues are paid to the landlord, the cause of action for
filing of a suit completely vanishes.
Next decision of this court, which has been placed before
us by the learned counsel for the appellant is in K.A. Ramesh &
Others versus Susheela Bai & Others [1998 (3) SCC 58]. In that
case arrears of rent were due from July, 1988 to December, 1988.
Before filing of the eviction petition, the tenant made full payment of
arrears of rent by bank draft, which was accepted by the landlord. On
these facts it was held that there was no default at all, much less
willful default on the part of the tenant in paying the rent for the
months in question and, therefore, the application for eviction ought
to have been summarily rejected. It was urged on behalf of the
landlord that even during the pendency of the eviction proceeding
there was default on the part of the tenant as no rent was paid and,
therefore, tenant was liable to be evicted. The court rejected the
contention inter alia on the ground that as the eviction petition
became infructuous, for subsequent default eviction cannot be
ordered.
We are of the opinion that in the case in hand at the time
of filing of the present eviction petition, landlord had no cause of
action as the arrears of rent were paid and accepted by the landlord
and, therefore, the petition became infructuous and liable to be
rejected. For subsequent default also eviction cannot be ordered in
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view of the stated legal position and in absence of any legal provision
in the Act. In view of the above legal position, the contention of the
learned counsel for the respondent has no substance. This
contention is also not sustainable in view of the decisions of this court
in S. Sundaram Pillai (supra) and Teegala Satyanarayana (supra).
Learned counsel for the respondent has further
contended that the application for eviction was filed on 25.11.1981
and for the said month of November no rent was paid. The tenancy
was a yearly one and, therefore, there was no question of default of
rent for one month as rent for the entire year was to be paid within
one month from the end of the yearly tenancy. Therefore, this
contention is also unsustainable. Moreover, this plea was raised for
the first time in this appeal.
For the reasons stated above, we find merit in the present
appeal and accordingly it is allowed by setting aside the impugned
judgment and judgments of the Appellate Court and the Rent
Controller and consequently the application for eviction shall stand
dismissed. We further direct the respondent to hand over the suit
premises to the appellant within three months from today.
Considering the facts and the circumstances of the case we direct the
parties to bear their own cost.
..........................J.
[R. P. Sethi]
......................J.
[S. N. Phukan]
January 09, 2002