PETITIONER: PANTY & COMPANY PVT. LTD. Vs. RESPONDENT: DUNDOO BALKRISHNAM BOMBAY DATE OF JUDGMENT05/04/1994 BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) MUKHERJEE M.K. (J) CITATION: 1994 SCC (4) 734 ACT: HEADNOTE: JUDGMENT:
ORDER
1.The appellant-tenant suffered a decree for eviction
under the Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act, 1960 (hereafter referred to as ‘the
Act’) on two grounds – (1) wilful default in payment of rent
and (2) bona fide need of a non-residential building for
starting a business. That decree was affirmed in the Court
of Appeal. The revision against the same was dismissed in
limine. In assailing the findings, Mr K.K. Venugopal,
learned Senior Counsel, would submit that as regards the
bona fide need, the petition for eviction does not plead,
much less prove the necessary requirements of Section
10(3)(e)(iii) of the Act. In other words, he has to plead
that he was not occupying a nonresidential building in the
city or in possession of such a premises. Such a plea is
totally absent. As laid down by this Court in Hasmat Rai v.
Raghunath Prasad1 there must be pleas and proof thereof on
these aspects. Therefore the petition on this ground of
bona fide need was liable to be thrown out for lack of
necessary pleadings.
2.As regards the arrears, there is no finding that there
was wilful default on the part of the appellant-tenant. On
the contrary, what has been found by the trial court is
negligence or indifference. As a matter of fact the tenant
had been lulled into a belief that the rent collector of the
landlord would come and collect the rent. Because of this
belief he did not pay the rent in due time. At no point of
time, the tenant was informed that he was to pay
1 (1981) 3 SCC 103, 109: (1981) 3 SCR 605, 612
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regularly. On the contrary there had been acceptances of
the rents by the landlord at intermittent intervals. On
this aspect the law has been laid down by this Court in
Rashik Lal v. Shah Gokuldas2. That ratio ought to have been
applied by the courts below. Then against in S. Sundaram
Pillai v. V.R. Pattabiraman3 what is talked of is reckless
negligence. There is no such recklessness in this case.
Consequently it is submitted that the impugned judgments are
liable to be set aside.
3.In opposition to this Mr K. Parasaran, learned Senior
Counsel would urge that as regards arrears the appellant was
issued a notice demanding arrears in the first instance for
the period 1-2-1972 (sic) to 31-1-1972. In spite of such a
notice, no step whatever was taken. Repeated reminders as
seen from the various exhibits clearly show how the tenant
had wilfully defaulted in payment of rents. In fact in the
notice dated 15-10-1972, it has been clearly stated that
there have been repeated and numerous wilful defaults in due
payment of rents. The plea was met by stating that there
was negotiation between landlord and tenant and the tenant
was expecting adjustment of the amount incurred towards the
repairs, as against the rent. Therefore, the plea that
there was no wilful default is not correct. The courts
below have rightly concluded the issue against the tenant on
this aspect. This alone would be sufficient to uphold
eviction. The case cited on behalf of the tenant in this
regard will have no relevance because Rashik Lal v. Shah
Gokuldas2 dealt with the case of habitual default. S.
Sundaram Pillai v. V.R. Pattabiraman3 dealt with the scope
of the provisos to Section 10(2)(i) of the Tamil Nadu
Buildings ( Lease and Rent Control) Act, as to the deeming
provision and the wilful default in the context. That case
will have no application to the facts here.
4.Concerning the second ground, no doubt, there was no
specific plea that the landlord was not occupying a non-
residential building of his own nor that he was entitled to
possession of any such building. Nevertheless, the parties
had adduced evidence with full knowledge relating thereto
and understood the scope of their case and took the trial.
Hence it is too late for the tenant to resile and urge the
ground of non-pleading.
5.We have carefully considered the above submissions. As
regards the arrears we find that the tenant was all along
contending adjustment of rent towards repairs as found from
the trial court’s judgment. Therefore, the plea of the
tenant was that he had incurred such an expenditure on
repairs which requires to be adjusted as against the rent.
Besides, we also find from the records that there are
several reminders calling upon the tenant to pay the rent
dated 2-1-1972 even 5-6-1971 P-3, 10-7-1971 P-4, 8-9-1971 P-
5, 10-1-1972 P-6, 12-6-1972 P-7, 12-7-1972 P-8, 29-9-1972
and 15-10-1972. In the last of the notices what is stated
by the landlord ‘is as follows:
“In view of your repeated and numerous wilful
defaults in due payment of rents and as my
clients by my earlier notices have already
2 (1989) 1 SCC 542
3 (1985) 1 SCC 591
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terminated your tenancy with effect from the
end of September 1972 my clients are not bound
or prepared to receive or encase the said
cheque and the same is returned to you
herewith.
Further my clients bona fide intend to start a
hotel business in the premises ]eased to you
after making suitable additions and
alterations to the premises. They are there,
in bona fide need of the said premises for
their own occupation.”
6.Under these circumstances the conclusion is inescapable
that the tenant had committed wilful default in payment of
arrears of rent. However, what is pressed into service by
Mr Venugopal is the decision of this Court in Rashik Lal v.
Shah Gokuldas case2. No doubt there are observations in the
concluding paragraph of said judgment that the landlord must
inform the tenant about payment of rent where the tenant had
been lulled in the belief that intermittent payments could
be accepted. We have got to point out, as rightly urged by
Mr Parasaran however, the language under this Act is totally
different and therefore this ruling has no application. We
find the conduct of the tenant not paying the rent in spite
of repeated reminders to which just now we have alluded will
constitute default. The case of S. Sundaram Pillai3 has
also no application because as is rightly urged by Mr
Parasaran, that dealt with the scope of the proviso under
Section 10(2) of the Tamil Nadu Buildings (Lease and Rent
Control) Act. Nevertheless where there is utter negligence
or reckless negligence as seen from the non-payment of rent
in spite of repeated reminders, the conclusion that it was
wilful could easily be sustained.
7.Turning to the plea of bona fide need, no doubt there
is no specific plea as is required under Section
10(3)(a)(iii), yet we are unable to hold that the finding in
this regard is in any way vitiated. The parties have gone
to Rent Controller and understood the scope of their case.
There is a statement of the landlord wherein he has stated
as follows:
“We wanted the premises for constructing a big
South Indian style hotel as it is a suitable
place and in view of the encouragement we got
from the Tourism department. We got the
adjacent premises vacated for that purpose and
till today it is kept vacant. The place is
centrally located and well-suited for the
hotel. We have already started a hotel in the
name of Hotel Park Lane, on the western style.
We want to start a big hotel with several
storeys consisting of about 300 rooms in it.”
Unfortunately for the tenant it has not been elicited
whether the adjacent premises is non-residential. No doubt
law requires as laid down in Hasmat Rai v. Raghunath Prasad’
that there must be a specific plea and proof thereof. Even
in the absence of such a plea where the evidence has been
let in this case and this was not seriously challenged
either in the Court of Appeal or in the revisional court, we
are unable to differ from that finding.
8.In the result, the civil appeal will stand dismissed.
There shall be no order as to costs.
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9.As regards time to vacate as agreed to by both the
learned counsel, time is granted till 31-12-1994 to hand
over vacant peaceful possession. However, this shall be
subject to the usual undertaking to be filed by the tenant
within four weeks from today. No costs.
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