ORDER
V. Eswaraiah, J.
1. This revision is filed against the judgment dated 22-12-1999 passed in RA No. 343 of 1995 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad, confirming the order of eviction passed by the 1st Additional Rent Controller, Hyderabad in RC No. 391/89, dated 26-4-1995.
2. The petitioner herein is the tenant in respect of the premises bearing No. 14-4-392 situated at Begum Bazar, Hyderabad, herein after referred to as ‘the said premises.’ The 1st respondent herein is the landlord of the said premises. He filed RC No. 391/89 before Rent Controller, Hyderabad for eviction of the petitioner under Section 10(2)(i) and 10(2) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Rent Control Act’) for wilful default of payment rent and also for subletting the said premises in favour of the 2nd respondent herein.
3. Before the Rent Controller the landlord examined himself as PW1 and
Exs.A1 to A8 were marked. Ex.A2 is the certified copy of the memo of compromise in RC No. 27/80. On behalf of the petitioner-tenant he examined himself as RW1 and got marked Exs.B1 to B25.
4. After scrutiny of the evidence, both oral and documentary, the Rent Controller by an order dated 20-4-1995 allowed the application of the landlord holding that the petitioner herein committed default in payment of rents from October, 1988 to January, 1989 and also committed default in payment of property tax from October, 1985 onwards. Insofar as the contention of the landlord that the petitioner sublet the said premises to the 2nd respondent herein is negatived. The Rent Controller held that the petitioner wilfully defaulted in payment of rents for four months from October, 1988 to January, 1989 and also wilfully defaulted in payment of property tax from March, 1987 to the end of September, 1994. Hence the petitioner is liable to be evicted from the said premises.
5. Aggrieved by the said order dated 25-4-1995, the petitioner filed RA No. 345/ 98 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad. During the pendency of appeal before the Rent Appellate Authority, the landlord died and his legal representatives have been brought on record who are respondents 3 and 4 herein. The Rent Appellate Authority held that though there was a delay in payment of rents from October, 1988 to January, 1989, the same cannot be said as wilful default. Against the said finding, the landlord did not file any appeal. But, however, the Rent Appellate Authority confirmed the eviction ordered by the Rent Controller holding that the petitioner-tenant failed to pay the property tax as agreed by him under Ex.A2 compromise memo from March, 1987 to September, 1994 and accordingly ordered eviction of the petitioner directing him to vacate the
said premises and handover the vacant possession to the landlord. Aggrieved by the said order of the appellate authority, the tenant filed this revision.
6. The only question that arises for consideration in this revision is whether the petitioner has committed wilful default in payment of property tax as agreed in the compromise memo Ex.A2.
7. It is submitted by Sri T. Veerabhadraiah) learned senior Counsel appearing for the landlord that the petitioner-tenant committed wilful default in payment of municipal tax in respect of the said premises for the period from 1987 to September, 1994 and therefore, he is liable to be evicted. He submitted that, both the Courts below rightly ordered for eviction of the petitioner-tenant. It is further contended that there is no illegality or irregularity in the orders of the Courts below and the findings of the Courts below being concurrent, and as the petitioner did not made out a case, this Court cannot interfere with the said findings.
8. On the other hand, the learned Counsel appearing for the petitioner-tenant contends that as per the agreement he paid the amount every year to the landlord who promised to pay tax but he did not pass any receipt for that and due to cordial relationship he had with the landlord, he did not insist for any receipt and there is no wilful default on his part in payment of property tax. It is further stated that the said premises is not independently assessed and no exact property tax was fixed to be paid by the tenant for the portion he occupied and his failure to pay tax cannot be considered as wilful default and, therefore, he cannot be evicted. To support his contentions he placed reliance on a decision of this Court in K. Rachamma v. Bimal Bai, 1996 (2) ALD 379.
9. As per the memo of compromise Ex.A2, the rent payable in respect of the said premises will be Rs. 300/- per month with effect from 1-10-1985 and the petitioner paid the entire arrears of rents payable from October, 1978 till the end of September, 1985. Clauses 7, 9 and 10 of Ex.A2 are relevant which are extracted hereunder:
“7. It is also agreed that besides being the payment of monthly rent, the respondent shall also pay a sum of Rs. 600/- six hundred) per year towards the property tax i.e., municipal tax for the premises in occupation of the respondent. This tax amount shall be paid till the separate assessment for the suit mulgi is got done. After the mulgi is separately assessed the tax shall be paid by respondent to MCH directly.
9. It is specifically agreed that from 1-10-1985 the respondent shall pay a sum of Rs. 300/- per month as rent payable on or before 10th of every English calendar month.
10. The respondent also shall pay a sum of Rs. 600/- per year on or before 15th October of the concerned year towards property tax to the petitioner.”
10. The said compromise memo makes it clear that there was no separate assessment of the property tax payable by the tenant in respect of the said premises and the said premises was part and parcel of the entire building. Therefore the tenant has agreed to pay proportionate property tax of Rs. 600/- per year payable towards the said premises of the landlord before 5th of every concerned year till separate assessment is made in respect of the said premises. Therefore, no separate evidence need be adduced either by the landlord or the tenant with regard to the total property tax that was assessed and payable for the entire building. As per the said agreement till the said premises is separately assessed, the petitioner is bound to pay a sum of Rs. 600/- per year
towards property tax. It is not the case of the petitioner either before the Rent Controller or the Rent Appellate Authority or before this Court that the landlord was not due to pay any property tax for the entire building. It is not open for the petitioner to contend before this Court for the first time that the property tax agreed to be paid by him as per compromise memo is tentative one and he is not under obligation to pay the un-assessed property tax. As per the compromise memo Ex.A2 both the parties have withdrawn all their adverse allegations against each other and they voluntarily entered into compromise agreeing to pay and the tenant agreed to pay a sum of Rs. 600/- towards property tax per year to the landlord. For nonpayment of the said sum of Rs. 600/- towards property tax, the landlord, as a matter of fact, filed IA. No. 586/84 for the arrears of property tax from 1985 to 1993 and the said application was allowed on 24-10-1994 and against the said order the petitioner filed appeal and the appeal was dismissed and thereafter only the petitioner deposited arrears of property tax from 1987 to the end of September, 1994. Thus the order of the Rent Controller directing to pay property tax after making enquiry, conclusively establishes that the tenant is wilfully defaulted in payment of property tax within the stipulated time. Both the Courts below held concurrently that the petitioner intentionally and deliberately failed to pay the municipal tax as agreed upon by him in the compromise memo Ex.A2 and, therefore, he is liable to be evicted.
11. The learned Counsel for the petitioner contended that as per the judgment of this Court in K. Rachamma v. Bimal Bai (supra), the sum of Rs. 600/-payable towards property tax is an ad hoc sum and it is not an ascertained one and, therefore for non-payment of property tax, he cannot be evicted and it is not part and parcel of the rent. It is true that the
sum of Rs. 600/- is not an assessed sum payable towards property tax in respect of his portion occupied by him (said premises). All these questions are not open to be contended at this stage as he has already agreed to pay a fixed sum of Rs. 600/- per year towards property tax till his portion is separately assessed as there was a common assessment for the entire building. Even otherwise this plea was not taken either before the Rent Controller or the Rent Appellate Authority and, therefore, it is not open for the petitioner to advance such an argument at this stage.
12. On the other hand, the learned senior Counsel for the landlord relied on a judgment of this Court in P. Rajaiah v. Veera Shaiva Vidyavardhak Sangh, , wherein the learned single Judge of this Court also considered the judgment in Rachamma’s case supra and held that in the said case the amount to be paid towards rent was not specified and an amount of Rs. 50/- per month was agreed to be paid by the tenant as an ad hoc sum towards property tax without reference to the actual amount of property tax payable to the Municipal Corporation. In those circumstances, nonpayment of sum of Rs. 50/- per month towards property tax which was not an ascertain sum and which was not demanded by the Municipal Corporation cannot be termed as a wilful default in payment of rents. Whereas in the instant case a sum of Rs. 600/- per year was payable towards property tax and Ex.A2 compromise memo makes it clear that there was a common assessment for the entire building and till the portion occupied by the petitioner is separately assessed, he has to pay a sum of Rs. 600/- to the landlord towards property tax. The tenant has agreed to pay the property tax to the landlordland. Landlord has to pay municipal tax in respect of the entire building and the said part sum was agreed to be
paid by the tenant at the rate of Rs. 600/-per year as per Ex.A2, memo in the earlier eviction petition. Therefore, the petitioner cannot wriggle out of the contractual obligations entered into by him under Ex.A2. Evidently as per Clauses 7 and 9 of Ex.A2 extracted supra, the petitioner-tenant is under obligation to pay the fixed sum of Rs. 600/-towards municipal tax to the landlord and after consideration of the disputes only the said sum was agreed by them voluntarily which has become final. Therefore, the property tax as agreed by him to be paid under Ex.A2 will form part of the rent that was payable to the landlord by the tenant and when once there was wilful default in payment of the said sum of Rs. 600/- per year towards property tax as per Ex.A2 it will be a ground for eviction as rightly held by both the Courts below. Similar view has been taken by this Court in the case of P. Rajaiah v. Veera Shaiva Vidyavardhak Sangh (supra).
13. No doubt the rent has not been defined in the Act. This Court in S. Fatheuddin Akbar v. Ghanshamdas, 1957 ALT 648, while considering similar provisions under the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 observed that ‘rent’ has not been defined in the provisions of the Rent Control Act, 1954. His Lordship referred to the English decisions which held that ‘rent’ included not only what is ordinarily described as rent but also payment in respect of special amenities provided by the landlord under the agreement between him and his tenant …The word ‘rent’ must be taken to have been used in its ordinary dictionary meaning and it is comprehensive enough to include all payments agreed to be paid by the tenant to his landlord. It must, therefore, be held that the said sum of Rs. 600/-payable by the tenant towards property tax per year to the landlord must be treated as part of the rent which was payable by him. Non-payment of the tax amount to the
landlord would mean non-payment of rent and would be covered by Section 10(2)(i) of the Rent Control Act.
14. While considering the payment of municipal tax, the Apex Court, in the case of Kranti Swaroop Machine Tools Private Limited v. Kanta Bai Asawa, , though has not laid down any principle whether non-payment of municipal tax will be considered as non-payment of rents, held that there was certain deposit of amounts with the landlord and, therefore, the municipal tax payable by the tenant ought to have been adjusted by the landlord and in view of the said deposit available with the landlord the tenant is not liable to be evicted for non-payment of municipal tax. In the said case, the Supreme Court held that there was wilful default in payment of tax, but their Lordships observed that there was deposit of certain amount and the municipal tax payable by the tenant ought to have been adjusted from out of the deposited sum of Rs. 10,000/- and, therefore, the tenant cannot be directed to be evicted on the ground of non-payment of municipal tax. In the instant case, there was no deposit to be adjusted for payment of municipal tax. Both the Courts below rightly held that non-payment of municipal tax by the petitioner is wilful and, therefore, he is liable to be evicted. I see no illegality or irregularity to in the findings of both the Courts below warranting the interference of this Court.
15. The CRP is accordingly dismissed. However, the petitioner is granted five months time to vacate and handover the vacant possession of the said premises to the landlord, he files an affidavit within one month from today before the Rent Controller to the effect that he will vacate and handover the vacant possession of the said premises to the landlord within five months from today and also undertakes that he will regularly pays the rents and
shall not sublet the premises and shall maintain the premises in good condition till he vacates the premises.