Full Judgment Text
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CASE NO.:
Appeal (civil) 7371 of 2002
PETITIONER:
N.D. Thandani (Dead) By Lrs.
RESPONDENT:
Arnavaz Rustom Printer & Anr.
DATE OF JUDGMENT: 24/11/2003
BENCH:
R.C. LAHOTI & ASHOK BHAN.
JUDGMENT:
J U D G M E N T
R.C. LAHOTI, J.
The tenant is in appeal, by special leave, feeling aggrieved by
the judgment of the High Court holding the tenant liable to be evicted
from the suit premises on the ground available to the landlord-
respondents under Section 10(2)(i) of A.P. Buildings (Lease, Rent &
Eviction) Control Act, 1960 (hereinafter ’the Act’, for short). The said
provision entitles a landlord to evict the tenant on the latter’s failure to
pay or tender the rent within the specified number of days on its
becoming due. The proviso appended to sub-section (2) provides for
the Controller allowing the tenant a reasonable period of time not
exceeding fifteen days to pay or tender the rent due by him to the
landlord calculated up to the date of such payment or tender, and
upon such payment or tender being made the prayer for eviction may
be refused if the Controller is satisfied that the tenant’s default to pay
or tender the rent was not wilful. It is conceded at the Bar that the
tenant shall incur the liability for eviction only on a finding arrived at
by the Controller of ’wilful default’ on the part of the tenant.
This litigation has a history of around thirty years broken into
three rounds of litigation, each time the landlord having sought for the
eviction of the tenant on the ground of wilful default and twice the
tenant having successfully escaped the threat of eviction. In the third
round he is struck by the findings arrived at and recorded in very
many details by the learned Rent Controller in his Order dated August
25, 1993, which has been upheld by the High Court in revision.
In an earlier round of litigation the tenant had come up to this
Court and this Court had, vide its order dated 12.1.1980, directed him
to deposit the then arrears within a period of two months and
continuously deposit the rent falling due thereafter, month by month,
by the 10th day of every month, with the Rent Controller. Complaining
of the default once again having been committed by the tenant, the
landlords in the first instance served through their counsel a notice
dated 28.10.81 on the tenant, calling upon him to furnish details of the
rent deposited by him with the Controller. The tenant through his
advocate gave a reply that all the arrears of rent were cleared.
However, no particulars as to challans by which the rent was deposited
with the Controller were furnished. On 12.11.1981, the landlord
moved an application before the Controller for withdrawing the amount
deposited by the tenant, and his application was returned with an
endorsement by the office of the Controller that an amount of
Rs.216.25 paise only was lying deposited. In a communication dated
12.11.1981, the landlord was informed by the tenant that there were
arrears to the tune of Rs.6,300/- which were all deposited in one go.
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Here again, the details of challans were not furnished and in fact the
Controller also gave credit for the amount of deposit made by tenant
on the basis of a letter of the State Bank of Hyderabad certifying the
amount of deposit. In the proceedings initiated by the landlord
seeking eviction of the tenant under Section 10(2)(i) of the Act, the
plea taken by the tenant was that the challans, evidencing the deposit
of rent with the bank, were sent to the Controller from time to time
through registered post. He made a statement to that effect on
21.8.1989 when he was examined in the Court of Controller. On a
prayer made by the landlord, 4 years after the date of the said
statement, the tenant was recalled for further cross-examination and
on 13.7.1993 he made available the challan showing deposit of
Rs.6,300/- and other challans also which he had kept with himself until
then. Even these challans, when scrutinized, did not support the plea
of the tenant that the entire amount in arrears up to date had been
cleared.
In exercise of the power conferred by Section 30 of the Act, the
Governor of Andhra Pradesh has framed the Rules called ’The Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961’
(hereinafter ’the Rules’, for short). Rule 5 of the Rules is relevant
which reads as under :
"5.(1) A tenant desirous of depositing the rent
under sub-section (5) of Section 8 or Section
9 or Section 11 shall deposit the same, if the
building concerned is in the City of
Hyderabad, in the State Bank of Hyderabad
and if the building is elsewhere, in the
Controller’s office or in the nearest treasury,
whichever is convenient, after obtaining
permission for the deposit of the rent from
the controller.
(2) The challan accompanying the deposit of the
rent shall be in the Andhra Pradesh Treasury
Code in Form No.10 in triplicate and shall
specify :-
(a) the name and address of tenant by
whom or on whose behalf the rent is
deposited;
(b) the name and address of the landlord
entitled to receive the rent deposited;
(c) the rent at which and the period for
which the rent is deposited;
(d) the description of the building in respect
of which the rent is deposited;
(e) the provision of the Act including the
circumstances under which the rent is
deposited; and
(f) the head of account to which the rent is
credited, namely :-
"P.II. Deposits and Advances \026 (Deposits
and bearing interest \026 C. Other Deposit
Accounts \026 Civil Deposits \026 Personal Deposits
\026 Personal Ledger Account of the Controller
or appellate authority, as the case may be".
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(3) One copy of the challan for the deposit of
rent returned by the State Bank of
Hyderabad Controller’s Officer or treasury,
as the case may be, after endorsing thereon
the receipt of the amount deposited, shall be
delivered in the office of the Controller or the
appellate authority as the case may be.
(4) On delivering one copy of the challan the
Controller or the appellate authority, as the
case may be, shall acknowledge its receipt
on the back of the challan retained by the
tenant and take necessary action for the
service of the notice of deposit on the person
or persons concerned within seven days of
the delivery thereof. The notice of deposit
shall be served on the person or persons
concerned in one or other of the modes
specified in Rule 16.
(5) Every Controller and every appellate
authority shall cause proper accounts to be
maintained in their offices for the rents
deposited under sub-section (5) of Section 8
or Section 9 or Section 11.
(6) A tenant against whom an application for
eviction has been made before the Controller
shall deposit all the arrears of rent due by
him, if any, in respect of the building within
such reasonable time, not exceeding 15
days, as may be specified by the Controller."
A perusal of the above said Rule shows that the rule making
authority has taken care to meticulously frame the rule and lay down a
detailed procedure so as not to leave room for any controversy to arise
between the landlord and the tenant as to the payment of the rent.
The object of framing such rule is that merely because of litigation or a
strained relationship existing between the landlord and the tenant, the
landlord may not be harassed for realising the rent and he must be
able to collect and receive the rent regularly. The tenant has to
deposit the rent through a challan as prescribed accompanying the
deposit wherein all the particulars provided for by sub-rule (2) have to
be given. The challan is in triplicate. One copy is to be delivered to
the Controller, after securing acknowledgment on another copy which
is to be retained by the tenant. Such delivery of copy of the challan
containing particulars specified in sub-rule (2) enables the Controller
to maintain proper accounts and also to give notice of the deposit to
the landlord who can thereafter withdraw the amount so deposited. A
failure to comply with the provisions of the rule will result either in the
deposit being lost in the jumble of hundreds of transactions which take
place in the treasury or bank everyday, or would result in failure by
the Controller in maintaining the accounts and giving notice to the
landlord. Whatever be the situation, the landlord would be deprived of
the opportunity of receiving the rent regularly in spite of the tenant
having deposited the same. The whole purpose behind enacting the
Rule will be frustrated because of the tenant’s negligence.
Placing reliance on the decisions of this Court in S. Sundaram
Pillai & Ors. Vs. V.R. Pattabiraman & Ors., (1985) 1 SCC 591,
and a Full Bench decision of Andhra Pradesh High Court in Vinukonda
Venkata Ramana Vs. Mootha Venkateswara Rao & Anr., AIR
2002 A.P. 52, the learned counsel for the tenant-appellant submitted
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that a mere default by the tenant does not invite liability for eviction;
the scheme of the Act draws a distinction between ’default’ and a
’wilful default’. The inference as to ’wilful default’ cannot be drawn
unless the default is intentional, deliberate, calculated and conscious,
with full knowledge of legal consequences flowing therefrom.
However, the same decision which has been relied on by the learned
counsel for the appellants states that where a tenant commits default
after default despite oral demands or reminders and fails to pay the
rent without any just or lawful cause, it cannot be said that he is not
guilty of wilful default because such a course of conduct manifestly
amounts to ’wilful default’.
The case at hand projects a picture where in spite of the leaning
of the law in favour of the tenant, if anyone deserves sympathy it is
the landlord and not the tenant. As already noticed, this is the third
round of litigation complaining of default in payment of rent by the
tenant. In the first round of litigation the rate of rent was alleged by
the landlord to be Rs.160/- per month which was denied by the tenant
who pleaded the rate of rent to be Rs.80/- per month only. In the
litigation which ended in the apex court, the rate of rent was finally
adjudged to have been Rs.160/- per month and not Rs.80/- as was
pleaded by the tenant. Not only does the law itself require the tenant
to pay or tender the rent month by month, the order of this Court
mandated the tenant to clear all the arrears of rent within two months
and thereafter to deposit the rent month by month and strictly observe
compliance with the orders of the Supreme Court. The tenant did not
even thereafter comply with the provisions of Rule 5. Huge amount of
arrears accumulated, which were cleared in one go. Even other
deposits were not regularly made. The tenant did not keep the
landlords informed of the deposits either directly or by complying with
the provision of the Rule. The obligation of the tenant to pay or tender
the rent cannot be said to have been discharged unless and until the
landlords were posted with the information along with particulars
enabling them to withdraw the amount. The legal notices served by
the landlords were not responded to in the desired manner so as to
put an end to their grievance. A claim for eviction founded on the
simple ground of default in payment remained pending for years,
obviously because of the reluctance and the procrastinating tactics of
the tenant. If this is not ’wilful default’ then what else can it be? We
are clearly of the opinion that the High Court has rightly held the
tenant to be a chronic wilful defaulter. The decree for eviction is fully
justified.
Before parting, and, in fairness to the learned counsel for the
parties, we may place on record a submission made on behalf of the
appellant that in spite of the tenant having defaulted in payment of
rent for any period prior to the institution of the suit, if the arrears
have been cleared (though belatedly) and the landlord has accepted
the same, the default, if any, stands wiped out and the cause of action
for seeking eviction of the tenant based on the preceding default does
not survive. Reliance was placed on a Full Bench decision of Andhra
Pradesh High Court in Vinukonda Venkata Ramana Vs. Mootha
Venkateswara Rao and Anr. \026 AIR 2002 AP 52. This decision takes
notice of two decisions of this Court (both by two judges benches)
reported as Dakaya Alias Dakaiah Vs. Anjani - (1995) 6 SCC 500
and K.A. Ramesh and Ors. Vs. Susheela Bai (Smt.) and Ors. -
(1998) 3 SCC 58. An earlier decision by a Five-judges Bench of the
Andhra Pradesh High Court, namely, Pallapothu Narasimha Rao
and Anr. Vs. Kidanbi Radhakrishnamacharyulu - AIR 1978 AP 319
was brought to the notice of the Full Bench deciding Vinukonda
Venkata Ramana’s case (supra) but the Full Bench commented that
the Five-Judges Bench decision in Pallapothu Narasimha Rao and
Anr. (supra) is not good law because it fails to take note of the
Supreme Court’s decision in the case of Dakaya Alias Dakaiah
(supra). The learned counsel for the respondent pointed out that the
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Five-Judges Bench decision of Andhra Pradesh High Court in
Pallapothu Narasimha Rao and Anr.’s case (supra) is based on a
Constitution Bench judgment of this Court in Mangilal Vs.
Suganchand Rathi \026 (1964) 5 SCR 239, which was not noticed in the
two Supreme Court decisions noted and followed by the Full Bench in
Vinukonda Venkata Ramana’s case (supra). The learned counsel
for the respondent further submitted that this Court should hold the
decision of the Andhra Pradesh High Court in Vinukonda Venkata
Ramana’s case not to be good law in view of the larger Bench
decision of that very Court in Pallapothu Narasimha Rao and Anr..
The issue is substantial and we would have certainly gone into it but
we find the present case is not an appropriate case for doing so. It is
not the finding arrived at either by the trial court or by the High Court
that the amount of arrears had stood paid by the tenant to the
landlord prior to the initiation of proceedings for eviction by the latter.
The question of examining the effect of such payment does not,
therefore, arise in the present case. On the contrary, the finding is
that the tenant was and has continued to remain in arrears upto the
date of the initiation of the proceedings, and the only question arising
for decision in the present case is whether the default can be said to
be ’willful’ or not.
The appeal is dismissed with costs throughout.
Still, to save the tenant from sudden eviction, we allow him time
upto 31.5.2004 for vacating the premises, subject to his filing an
undertaking on affidavit within four weeks from today, incorporating
the following terms and strictly complying therewith :
(i) that on or before 31st May, 2004, the tenant shall
deliver vacant and peaceful possession to the
landlord and shall not induct anyone else in
possession or create any third party interest in the
tenancy premises;
(ii) that the statement of the deposits made by the
tenant with all the relevant particulars, so as to
satisfy the Rent Controller and the landlord that all
the arrears have been cleared up to date, shall be
filed within four weeks from today; and
(iii) the amount equivalent to rent calculated upto
31.5.2004 shall be deposited in advance within a
period of four weeks from today.
Failing compliance with any of the terms, the decree for eviction
shall be available for eviction of the tenant-appellant forthwith.