JUDGMENT
All these revision petitions being inter-related were taken up for hearing together and are being disposed of by this common judgment
2. Landlady is the petitioner in all these revision petitions.
3. The brief facts leading to the filing of these petitions may be stated thus:
The petitioner is the owner of the premises bearing Municipal No.6-3-853 situated at Ameerpet, Hyderabad. She had leased four malgies of the said premises to one Sri Thakur V. Hari Prasad on a monthly rent of Rs.800/-, which was enhanced to Rs.1,000/- per month payable in advance every month on or before 5th day. It has been alleged that he stopped paying rent from January, 1987 on wards and committed wilful default in payment of rents for the period from January, 1987 to August, 1987. She further alleged that he had also sublet mulgi No.3 to One Sri Sharma who had been running Glassware business since October, 1986 and the fourth mulgi to one Shri Shyam Sundar who had been running kirana business, without her consent. She also raised the grounds that the premises were being used for the purpose other than for which they were leased, that both the tenant and the sub-tenants have committed acts of waste by making alterations to the mulgies thereby impairing the value and utility of the premises, that the tenant and the sub-tenants have their own alternative residential and non-residential premises in Hyderabad and Secunderabad and that she requires the premises for bona fide requirement of commencing tiles business.
4. On the above facts, the petitioner herein filed three separate rent cases under Sections 10(2)(i), (ii) (a)(b), (iii)(iv) and 3(a)(iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 for eviction of the tenant and the alleged sub-tenants. RC No.1268 of 1987 was filed against the tenant and the alleged sub-tenant Sri Sharma, RC No. 1269 of 1987 was filed against the tenant and RC No. 1270 of 1987 was filed against the tenant and the alleged sub-tenant Sri Shyam Sunder.
5. For convenience sake, the parties will be referred to by their status in the RCs.
6. In all the revision petitions on behalf of the petitioner PW1 was examined and on behalf of the respondents RWs.1 and 2 were examined.
7. In RC No.1268 of 1987 Ex.Pl was marked on behalf of the petitioner and in RC No.1270 of 1987 Exs.Pl to P5 were marked on behalf of the petitioner as documentary evidence and no documents were filed on behalf of the respondents.
8. The learned Rent Controller in RC Nos.1268 and 1269 of 1987 found that the tenant had committed wilful default in payment of rent and on that ground the petitions were allowed directing to vacate and handover vacant possession of the suit premises to the petitioner. The other grounds raised by the petitioner were negatived. The Rent Controller, however, allowed the RC No. 1270 of 1987, both on the ground of wilful default in payment of rent and also on the ground that he had sub-let the scheduled premises to Sri Shyam Sundar without the permission of the petitioner and the other grounds were negatived.
9. Aggrieved by the order of the Rent Controller in RC No.1268 of 1987 while the tenants/respondents preferred RA No.615 of 1993 before the Chief Judge, City Small Causes Court, Hyderabad, the petitioner preferred RA No.97 of 1994 against that part of the order of the learned Rent Controller negativing the grounds of sub-lease, availability of alternative accommodation to the respondents etc. The learned appellate Judge by the orders impugned herein allowed the appeal preferred by the respondents by setting aside the order of eviction and dismissed the appeal filed by the petitioner. Being aggrieved thereagainst, the petitioner filed CRP Nos.804 and 805 of 1998 respectively.
10. Similarly, against the order in RC No.1269 of 1987, the respondents preferred RA No.613 of 1993 and the petitioner preferred RA 99 of 1994, against that part of the Rent Controller rejecting her claims of bona fide requirement of the premises and availability of alternative accommodation to the respondents. Similar is the result in these appeals also and against the said orders, petitioner filed CRP Nos.833 and 802 of 1998 respectively.
11. Likewise, against the orders in RC No.1270 of 1987, while the respondents preferred RA No.614 of 1993, the petitioner preferred RA No.98 of 1994 against the order of the rejecting the pleas of bona fide requirement and availability of alternative accommodation to the respondents. The learned Court of Appeal allowed RA No.614 and dismissed RA No.98, aggrieved thereagainst, the petitioner filed CRP Nos.617 and 597 of 1998 respectively.
12. As regards the ground of default in payment of rent, the learned Rent Controller in all the petitions recorded a finding that the respondents have failed to produce any documentary evidence to show the tender and refusal of rents during the period between January and November, 1987 and thus they committed wilful default in payment of rents. It was also held that mere filing of RCs.1330 and 1331 of 1987 for deposit of rents subsequent to the filing of the eviction petitions would not absolve them of the statutory obligation to pay the rents as per the lease and they have failed to discharge the burden of establishing the tender of rents regularly. The learned Court of Appeal, however, inter alia, held that having regard to the fact that the tenant-respondents have remitted rent through money order, but, as the landlady refused to receive the same, the same were sent through cheques. It was also held that as the petitioner did not furnish her bank account, they deposited rents by filing RC No.1330 and 1331 of 1987. The appellate Court further held that only because proof of deposit of rents to the credit of RC Nos.1330 and 1331 of 1987 had not been filed, the learned Rent Controller is not justified in drawing an inference that the rent for the above said period had not been paid. It was held that in order to constitute default, the same must be intentional and deliberate. It was held:
Whereas in this case, the appellants have categorically stated that they have deposited the rents to the credit of the aforesaid RCs for the period during January, 1987 to November, 1987. On a mere presumption that the necessary challans are not filed showing the payment of rents, the tenants cannot be termed as wilful defaulters. It is contended by the appellants that the cheques were filed in the petitions filed under Section 8(5) of the Rent Control Act in RC No.1330 and 1331 of 1987 filed for the purposes of depositing of rents and the tenants have been regularly depositing the rents to the credit of the said RCs. After furnishing the bank account by the respondent/landlady the rents are being deposited in the bank as per the orders of the Court. Thus, it is clear that there was no wilful default committed by the appellant as alleged by the respondent.
13. As regards the decree for eviction on the ground of subletting of the premises so far as CRP No.617 of 1998 arising out of RA No.614 of 1993 is concerned, it was held:
“The ground of subletting was also not considered by the Rent Controller holding that the alleged lessees namely Sharma and Shyamsunder were no other than the employees of appellants 2 and 3 and no contra evidence was placed on record to disprove that fact. Therefore, the rent controller has rightly rejected the ground of subletting for seeking eviction of the tenant.”
14. Sri Tulasi Reddy, learned Counsel for the petitioner-landlady inter alia submitted that the learned Court of appeal below erred insofar as it failed to take into consideration that the deposit of rents subsequent to RCCs would not save the tenant-respondents from treating them as defaulters. The attention of this Court has been drawn to a Full Bench decision of this Court in Narasimha Rao v. Aradhakrishnamacharyulu, 1978 (1) ALT 311. The learned Counsel would contend that in a situation of this nature, the onus was on the tenant to show that no default had been committed. The proviso appended to Section 10(2) (1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act would not come into play in this case. Reliance has been placed in this connection on a decision of the learned single Judge in Narasaiah v. P. Narasimha Reddy (dead), . As regards subletting, the learned Counsel for the petitioner would contend that ex facie, the learned Court of appeal below erred in holding that no document has been placed to prove subletting although five documents had been exhibited in that regard which had been relied upon. Exs.Pl to P4 were xerox copies of the receipts in relation to grant of licence fee whereas Ex.B5 was a photograph to show that the premises were in occupation of respondents 2 to 4.
15. The learned Counsel appearing for the respondents submitted that the licensee was merely an employee of the respondents. He contended that the learned Court of appeal below went wrong in holding that no document had been produced to prove subletting. However, the learned Counsel would contend that for the said purpose, this Court may remit the matter to the Court below.
16. As regards the question of wilful default, the learned Counsel would contend that the tenant -respondents had been taking steps to comply with the procedure for depositing rents, and the pre-conditions in relation whereto are (1) to issue notice and wait for atleast ten days for reply; thereafter (2) to send rent to the landlord by the Money Order whereafter only they filed an application. According to the learned Counsel, the procedure had been initiated which promoted them to filing of the Rent Control petitions although the said RC Nos.1330 and 1331 of 1987 were filed in November, 1987. It was submitted that those documents could not be filed before the Rent Controller, which were filed before the Court of appeal, pursuant to which it was held that the petitioner did not commit any default.
17. The learned Counsel for the respondents in reply submitted that it is not correct to say that the landlady would not be entitled to get decree for eviction although wilful default had been proved. The learned Counsel would contend that there has been clear default for the months of January to August, 1987. It was contended that filing of application for deposit of rents would not save the tenants from being evicted if the default is proved. It was urged that even one ground would be sufficient for passing a decree for eviction and it is not necessary for this Court to remit the matter back to the learned Court of appeal. Section 10 of the said Act provides that tenant shall not be evicted except in execution of decree.
18. Proviso to Section 10(2) reads thus:
“10. Eviction of tenants:
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2. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-
(i) that the tenant not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; or
(ii) that the tenant has, in the Andhra area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad House Rent Controller Order of 1353 Fasli, without the written consent of the landlord,–
(a) transferred his right under the lease or sublet, the entire building or any portion thereof if the lease does not confer on him any right to do so; or
(b) used the building for a purpose other than that for which it was leased; or
(iii) that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the
building; or
(iv) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood; or
(v) that the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause; or
(vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide.
The Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application:
Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant’s default to pay or tender the rent was not wilful, he may, notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected”.
19. It is not in dispute that the revision petitions were filed on 1-11-1987 claiming rent from January, 1987 onwards. It is beyond any cavil of doubt that the tenant has a statutory liability to pay rent to the landlord. The burden of proof that due rent has been tendered to the landlord is upon the tenant. Before the learned Rent Controller, no document or certified copy was produced to show that applications for deposit of rent had been filed nor the certified copies of returned cheques or MOs had been filed.
20. The learned Court of Appeal below only relied on the ground that the respondents herein paid rents from January, 1987 onwards in the aforementioned RC Nos. 1330 and 1331 of 1987 and therefore, they are not wilful defaulters without considering the fact that no material documents evidencing such payment by tenant had been produced before the Court.
21. Section 8(5} of the A.P. Buildings (Lease, Rent and Eviction) Control Act reads thus:
“8. Right of tenant paying rent or advance to receipt:–
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5. If the landlord refused to receive the rent remitted by money order under subsection (4), the tenant may deposit the rent before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf.
22. A Rent Controller, having regard to his limited jurisdiction is bound to consider the cases of the respective parties within four corners of Section 10 of the Act. In terms of clause (1) of sub-section (2) of Section 10 of the Act, a tenant is bound to pay or tender rent due from him within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or, in absence thereof, by the last date of month following that month, for which the rent is payable. A tenant, who fails to establish that he has paid or tendered rent within the time stipulated aforementioned, would be a defaulter. As the proviso appended to sub-section (2) of Section 10, is beneficent to the tenant, the doctrine of wilful default to some extent has been introduced to allow him to deposit the amount only in the event he is satisfied that the tenant is not a wilful defaulter. Such satisfaction must base on objective criteria. A default occurs at the expiry of each month subsequent to the last date of the month next following that for which the rent is payable. It was, therefore, for the tenant to show that he had no other option but to, deposit the rent despite his attempt to pay or tender the monthly rent payable to the landlord.
23. Section 11 of the Act provides that payment or deposit of rent alone would entitle the tenant to contest the case.
24. The learned Court of appeal below, in the considered opinion of this Court, has evolved a new doctrine inasmuch as it has proceeded to hold that the wilful default must be intentional or deliberate. The proviso to Section 10 on the other hand provides that the satisfaction of the Court must be reached to the effect that the default was not intentional or deliberate.
25. The respondent could not show any reasonable ground, far less a reasonable or cogent ground, as to why he could not tender rent from January, 1987 to August, 1987. It is admitted that the rent had not been deposited from January, 1987 to August, 1987 nor any step in that regard had been taken by the tenant-respondents.
26. The right of a tenant to deposit the rent is vested in Section 9 of the Act. Such deposit can be made inter alia in the event the requirements of Section 8 are satisfied. Refusal to accept rent when tendered by the landlord inter alia would entitle the tenant to file an application for deposit of rent under the Act.
27. Sub-section (3) of Section 8 would be attracted only when the rent is to be deposited in a specified bank. A notice by the landlord requiring him to specify a bank so as to enable the tenant to deposit the rent would arise only when the landlord refuses to accept. The tenant was therefore primarily liable to prove before the Court that circumstances existed so as to enable him to invoke the provisions of Sections 8 and 9 of the Act. No such evidence had been brought on records, at least in relation to non-payment of rent from January, 1987 to August, 1987.
28. A wilful defaulter, under the statute, does not get any exemption from suffering a decree for eviction only because wisdom had dawn on him at a later stage as each month’s default would give rise to a cause of action for initiating proceedings for eviction under the said Act. In the instant case, even the tenant did not make any attempt to show that he had deposited the rent before the Rent Controller. Only some receipts have been filed before the Court of appeal below at the first instance. In the aforementioned situation, the learned Court of appeal below was under a legal obligation to see whether the requirements as embodied in the Rent Control Act have been fulfilled or not. But, it failed to discharge the said obligation vested in it. Narasiah’s case (supra) deals with the same set of facts, wherein the learned single Judge (B.S. Raikote, J., as he then was) observed thus:
“21. The learned Counsel for the petitioner/tenant submitted that there is no wilful default on the part of the tenant. He submitted that soon after the withdrawal of the suit OS No.47 of 1981, the landlord, filed the eviction petition on 14-6-1984 and immediately after filing the same; he paid the entire amount due, by way of demand draft on 18-6-1984. At the most, such an action on the part of the tenant could be described as a default but not wilful default. But from the evidence on record, it is quite clear that the tenant did not pay the rent right from the month of September, 1981 to May, 1984. In his evidence, RW1/the tenant stated that he used to go to the house of the landlord to pay the rent and when the landlord refused to accept the same, he sent the Money Orders and when the Money Orders were refused, he did not pay any rent and he has paid the rent only after filing the eviction petition. But the tenant has not produced any material to support his case. He has not filed any money order coupons showing that the said money orders have been refused by the landlord. Under the Act the rent falls due when the tenant falls due when the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no agreement before the last date of the month next following for which rent is payable.
22. The learned Counsel for the petitioner-tenant submits that immediately after filing the eviction petition, the entire amount due has been paid to the landlord and therefore, there is no wilful default on his part. This submission of the learned Counsel for the tenant cannot be accepted, in view of the Full Bench decision (consisting of Five Judges) of this Court reported in Palleapethu Narasimha Rao and another v. Kidari Radhakrishnamacharyulu and another, (1978 (1) ALT 311). In this decision, the Full Bench of this Court held that the moment the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no agreement, before the last day of the month next following that for which rent is payable, there is default and a right on the part of the landlord to have the tenant evicted arises subject only to the proviso. This Court has also held that there is nothing in this section which enables the tenant to contend that the right is lost merely because the tenant pays or tenders the rent due subsequently. This Court has further held that the mere fact that the rent which had not been paid or tendered within fifteen days after the expiry of the time so fixed in the agreement or in the absence of such agreement before the last day of the month next following that for which rent is payable, was tendered prior to the petition, would not be an answer to an eviction petition under Section 10(2)(i) of the Act. Therefore, the contention of the learned Counsel for the petitioner that the tenant has deposited the entire arrears of rent on 18-6-1984 immediately after filing the eviction petition cannot be an answer. Notwithstanding such deposit made by him subsequent to the filing of the eviction petition, he is liable for eviction on the ground of wilful default in paying the rent immediately on the commencement of the Act. Therefore, this contention of the learned Counsel for the petitioner-tenant cannot be accepted”.
29. As indicated hereinbefore, the Court of appeal below even did not advert correctly to the question of sub-letting so far as RA No.614 of 1993 is concerned. It must therefore be held to have misdirected itself in law in passing the impugned order.
30. So far as CRP Nos.805, 832 and 597 of 1998 are concerned, having regard to the concurrent findings of fact arrived at by the Courts below as regards the grounds of acts of waste, bona fide requirements of the petitioner, availability of alternative accommodation to the tenant etc., this Court is of the opinion that no cause has been made out to interfere therewith in exercise of the jurisdiction under Section 115 of the Code of Civil Procedure.
31. For the reasons aforementioned, the judgments of the Court below passed in the respective Rent Appeals so far as CRP Nos. 804, 833 and 617 of 1998 are concerned, the same cannot be sustained and they are accordingly set aside. Accordingly, CRP Nos.804, 833 and 617 of 1998 are allowed and CRP Nos.805, 832 and 597 of 1998 are dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
