ORDER
P.S. Narayana, J.
1. Heard Sri M.V. Bharati, the learned Counsel representing the revision petitioner and Sri Ravindra Viswanath, the learned Counsel representing the respondent.
2. The respondent herein – the landlord filed the eviction petition R.C. No. 251/96 on the file of IV Additional Rent Controller, Hyderabad praying for eviction against the revision petitioner – the respondent in the R.C. – the tenant on the ground of wilful default. The learned Rent Controller on appreciation of the evidence of R.W.1 to R.W.3, Ex.A.1 to Ex.A.3 and Ex.B.1 to Ex.B.53 came to the conclusion that the ground of wilful default had been established and ordered eviction. Aggrieved by the same, the tenant carried the matter by way of appeal R.A.No. 27/2000 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad – the Appellate Authority and the learned Appellate Authority on appreciation of the evidence available on record and the findings recorde by learned Rent Controller, confirmed the findings and dismissed the appeal. Aggrieved by the same, the present C.R.P. is preferred under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act 1960 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience). The parties hereinafter would be referred to as landlord and tenant.
3. The learned Counsel representing the tenant Sri M.V. Bharati made the following submissions:
4. The learned Counsel would contend that mere default under the Act would not constitute a ground for eviction and it must be wilful and for establishing the default to be wilful default when the tenant is coming before the Court with some explanation, the landlord or the landlady, as the case may be, may have enter into the witness box and explain the same and unless that is done, it cannot be said that the ground of wilful default is established. The learned Counsel would point out that the parties are close relatives and the tenant is none other than the brother’s wife of the landlord and in view of the close relationship between the parties though rents were being paid, no receipts were passed and this was due to faith and unless the landlord entered into the witness box and denied these allegations, it cannot be said that the ground of wilful default had been established. The learned Counsel also pointed out that the concurrent findings recorded by both the Courts below, cannot be sustained especially in the absence of any evidence, whatsoever, on behalf of the landlord. The learned Counsel placed reliance on certain decisions to substantiate his contention that in the facts and circumstances of the case, the non-examination of the landlord is fatal and adverse inference may have to be drawn in this regard.
5. Per contra Sri Ravindra Viswanath, the Counsel representing the landlord in all fairness would submit that it is true that the parties are relatives but the fact remains that for sufficiently a long time, the tenant had committed default and the conduct of the tenant would go to show that even as on today she continues to commit default and in the light of the subsequent events also, this conduct of the tenant can be taken as wilful only. The mere non-examination of the landlord would be of no consequence. The learned Counsel also had drawn the attention of this Court to the contents of the affidavit filed along with the application before this Court praying for direction to deposit rents. The learned Counsel also would point out that in the light of the same, the tenant had delivered the D.D. for Rs. 34,500/- only which had been received by the landlord under protest and without prejudice to his contentions relating to the ground of wilful default. The learned Counsel also would comment that in the light of the contents of the affidavit and also the calculation memos of the parties, it is clear that heavy amount is due by way of arrears of rent and in the absence of any explanation in this regard forthcoming from the side of the tenant, not only on the ground that for sufficiently a long time, the default had been committed by the tenant which was made a ground for eviction in the R.C., but also un the light of the conduct of the tenant subsequent thereto, even as on this day, the tenant is liable to be evicted. The learned Counsel also placed reliance on certain decisions in this regard.
6. The landlord tiled R.C. No. 251/96 as petitioner pleading the ground of wilful default. It was pleaded by the landlord in R.C. No. 251/96 as hereunder :
The petitioner submits that the respondent is the tenant of the demised mulgy on a monthly rent of Rs. 1,000/- inclusive of charges of amenities and exclusive of electricity charges and property tax and that the tenancy is oral. The rent is payable on or before 10th day of each month in advance. That earlier M/s. Jay Bhavani Agencies has been the tenant and they were in arrears May. 1991 to January, 1992 and as per the understanding between M/s. Jay Bhavani Agencies, the petitioner and the respondent, the respondent agreed to pay the said arrears of rent from May, 1991 to January, 1992 amounting to Rs. 9,000/- and on the above understanding M/s. Jay Bhavani Agencies handed over the possession of the demises mulgi to the respondent and the respondent is the tenant of the petitioner from February, 1992. Further the petitioner submits that the respondent has been very irregular in payment of rent from the beginning and inspite of oral demands the respondent failed to pay the rent and as such the petitioner issued a letter demanding arrears of Rs. 31,000/- till the end of January, 1994 and the respondent received the said letter and issued a notice dated 31-1-1994 making false allegations. The petitioner submits that as and when the rents were paid, the respondent has obtained the rent receipts. The respondent is liable to pay the rents of Rs. 60,000/- for a period of 60 months commencing from May, 1991 to April, 1996 and paid a total sum of Rs. 26,000/- out of it the respondent is still due and payable a sum of Rs. 34,000/- towards the arrears of rent. That subsequent to issue of reply notice the respondent has been paying the rents and the petitioner has been receiving the same under protest. The petitioner further submits that the respondent intentionally, deliberately and wilfully failed and neglected to pay monthly rents every month from May, 1991 to February, 1993, April, 1993 to August, 1993, October, 1993 to December, 1993 and January, 1996 to April, 1996 and he is wilful defaulter and liable for eviction.
7. The tenant as respondent in the aforesaid R.C. filed counter with the following averments :
It was pleaded in the counter by the tenant that the firm under the name and style of M/s. Jay Bhavani Tyres is the tenant and without impleading M/s. Jay Bhavani Tyres as a party, the petition is not maintainable. The respondent states as incorrect the measurements of the suit premises. The respondent states as incorrect the measurements of the suit plaint schedule. The respondent admits that the monthly rent is Rs. 1,000/- inclusive of charges of amenities and exclusive of electricity charges. The respondent denies that he is liable to pay the property tax of the suit premises. The respondent admits that the monthly rent is payable on or before 10th of each month in advance. The respondent denies the allegation that earlier to Jay Bhavani Tyres, Jay Bhavani Agencies has been the tenant and it was in arrears. The respondent submits that Jai Bhavani Agencies, a partnership firm, consisting of partners Sri Vijay Kumar Partani and Sanjay Kumar Partani were the tenant of suit premises during May, 1991 to January, 1999, and as such this respondent is no way connected either with the tenancy or payment of rents during the said period. The respondent further denies that there was an understanding in which the respondent agreed to pay arrears of rents from May, 1991 to January, 1992 and as such this respondent is no way connected either with the tenancy or payment of rents during the said period. The respondent further denies that there was an understanding in which the respondent agreed to pay arrears of rents from May, 1991 to January, 1992 in a sum of Rs. 9,000/- to the petitioner. The respondent further submitted that all the rent receipts in respect of the demises premises are being passed by the petitioner in favour of M/s. Jay Bhavani Tyres and that he was reliably given to understand by the partners of M/s. Jay Bhavani Agencies and that they have paid the entire rents of the suit premises during their occupation since May, 1991 to January, 1992. The respondent denies that she is irregular in payment of rents since beginning. The respondent contends that the petitioner issued a letter claiming arrears of Rs. 31,000/- till the end of January, 1994 even though they were no arrears. The respondent submits that the reply dated 31-1-1994 issued by him is true. The respondent submits that even though the rents were paid in cash, petitioner is not issuing rental receipts and as the petitioner is none else that the own elder brother of this respondent’s husband and in good faith rents were paid in cash even though the receipts for such cash payments were not being issued by the petitioner. The respondent submits that the petitioner is not in sound mind. The respondent submits that the petitioner has issued receipts for the rents of the suit premises as and when paid through cheques. The respondents denies that an amount of Rs. 34,000/- being due towards arrears of rents. The respondent further submits that the petitioner has not given credit to Rs. 8,400/- which were paid by M/s. Jay Bhavani Tyres towards property tax arrears in pursuance of the demand made by the Municipal Corporation of Hyderabad and also liable to adjust Rs. 384/-paid towards enhanced caution deposit to the APSEB while calculating the arrears of rents of the suit premises. The respondent further submits that if the above amounts paid towards property tax and caution deposit were adjusted towards rent nothing remains due and payable to the petitioner towards the rent of the suit premises and on the other hand there will be excess amount in the hand of the petitioner and as such there is absolutely no default in payment of rents. The respondent further submits that an amount of Rs. 15,000/- was paid in cash to the petitioner landlord on 1-2-1996 as advance amount which is agreed to be adjusted in the future rents of the suit mulgi and that the amount was paid at the time of petitioner’s daughter’s marriage and that no receipt written statement obtained in view of the trust, good faith and close relationship between the parties. That the said payment was reflected in the account books maintained in respect of M/s. Jay Bhavani Tyres and in view of the above facts, the petition may be dismissed.
8. The landlord also filed a rejoinder pleading that the tenant is liable to pay property tax as agreed in respect of suit premises. Further in written statement it is specifically pleaded that the whenever the rents were paid by the tenant, the tenant obtained receipts and when no rents were paid by the tenant, the question of issuing rental receipts would not arise and certain other details also had been narrated in the rejoinder.
9. On behalf of the landlord none entered the witness box and Ex.A.1 to Ex.A.3 were marked. Ex.A.1 is the letter to Jai Bhavani Tyres; Ex.A.2 is the statement of account of Jai Bhavani Tyres; and Ex.A.3 is the reply notice. On behalf of the tenant R.W. 1 to R.W.3 were examined. R.W.1 is the husband of the tenant and brother of the landlord, R.W.2 is M. Sambasiva Rao and R.W.3 is Gopal Trivedi. Ex.B.1 is the GPA; Ex.B.2 to Ex.B.23 are the rent receipts; Ex.B.24 is MCH Tax receipt; Ex.B.25 to Ex.B.42 are the Ledger Books; Ex.B.43, Ex.B.44 and Ex.B.45 are computation statements; Ex.B.47 is the profit and loss account; Ex.B.48 is the balance sheet, Ex.B.49 is the account book for the year 1993-94; Ex.B.50 is the account sheet, page 24 of the account book; Ex.B.51 is the relevant entry at page No. 77 showing payment of loan advanced to Gopal Trivedi in a sum of Rs. 9,000/-and Rs. 6,000/-; Ex.B.52 and Ex.B.53 are the entry showing the receipt of Rs. 15,000/-from Gopal Trivedi and entry at Page 79 of the Ledger Book for the year 1995-96 showing receipt of Rs. 15,000/- from Gopal Trivedi, respectively. The learned Rent Controller framed the following points for consideration :
(1) Whether the respondent has committed wilful default for the months from May, 1991 to February, 1993, April, 1993 to August, 1993, October, 1993 to December, 1993 and January, 1996 to April, 1996 ?
(2) Whether the petition filed against the respondent in her individual capacity is maintainable ?
and ultimately arrived at the conclusion that the ground of wilful default was established and ordered eviction. Aggrieved by the same, the tenant preferred R.A. No. 27/2000 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad – the Appellate Authority and the Appellate Authority at Para 9 framed the following points for consideration:
(1) Whether the respondent has committed wilful default for the months from May, 1991 to February, 1993, April, 1993 to August, 1993, October, 1993 to December, 1993 and January, 1996 to April, 1996 ?
(2) Whether the petition filed against the respondent in her individual capacity is maintainable ?
10. Commencing from Para 10 the Appellate Authority discussed all the aspects and answered Point No. 1 in favour of the landlord and against the tenant. The Appellate Authority also answered Point No. 2 in the light of the evidence of R.W.1 and answered the point in favour of the landlord and against the tenant and ultimately dismissed the appeal. Aggrieved by the same, the present C.R.P. was preferred.
11. The only ground on which the relief of eviction was prayed for is wilful default. The relationship between the parties is not in serious dispute. The quantum of rent also is not in dispute. It is the case of the landlord that the default period commenced from May 1991 to February, 1993, April, 1993 to August, 1993, October, 1993 to December, 1993 and January, 1996 to April, 1996. It is not in serious controversy that the present tenant was put as tenant from the month of February, 1992 and prior thereto M/s. Jai Bhavani Agencies was the tenant. However, the period when M/s. Jai Bhavani Agencies had been the tenant, arrears had been given-up and the same had been recorded, thus the wilful default in payment of rent is for the period from February, 1992 to February, 1993, April, 1993 to August, 1993, October, 1993 to December, 1993 and January, 1996 to April, 1996. It is needless to say that the tenant is under an obligation to pay rent and the tenant has to prove that he has been regular in payment of rents. The tenant had examined her G.P.A. Holder as R.W.1 -the G.P.A. Holder had deposed certain details relating to the payments. The other 2 employees were examined as R.Ws.2 and 3. On appreciation of the evidence available on record inclusive of the relevant entries and on appreciation of the evidence of R.Ws.1, 2 and 3 in detail, both the learned Rent Controller and Appellate Authority recorded concurrent findings that the tenant has committed wilful default for the relevant period since no acceptable explanation is forthcoming for non-production of the receipts for the relevant time. In S. Sundaram v. R. Pattabhiraman , the ‘3’ Judge Bench of the Apex Court while dealing with the expression wilful default under Tamil Nadu Buildings (Lease and Rent Controller) Act, 1960 observed :
Before, however, going into the question further, let us find out, the real meaning and content of the word ‘wilful’ or the words ‘wilful default’. In the book ‘A Dictionary of Law’ by L.B. Curzon, at Page 361 the words ‘wilful’ and ‘wilful default’ have been defined thus :
‘Wilful’ – Deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing.
‘Wilful default’ – Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
In other words, ‘wilful default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In ‘Words and Phrases’, Volume 11A (Permanent Edition) at Page 268 the words ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Volume 45 of ‘Words and Phrases’, the words ‘wilful’ has been very clearly defined thus :
‘Wilful’ – intentional; not incidental or involuntary :
done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently; ;
in common parlance word ‘wilful’ is used in sense of intentional, as distinguished from accidental or involuntary.
P. 296 – “Wilful” refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
In Volume III of Webster’s Third New International Dictionary at Page 2617, the word ‘wilful’ has been defined thus :
“governed by will without yielding to reason or without regard to reason obstinately or perversely self-willed.”
The word ‘default’ has been defined in Vol.1 of Webster’s Third New International Dictionary at Page 590 thus :
“to fail to fulfill a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.”
In Black’s Law Dictionary (4th Edn.) at Page 1773 the word ‘wilful’ has been defined thus:
“Wilfulness” implies an act done intentionally and designedly; a conscious failure to observe care; Conscious; knowing; done with stubborn purpose, but not with malice.
The word “reckless” as applied to negligence, is the legal equivalent of “wilful” or “Wanton”.
Thus, a consensus of the meaning of the words ‘wilful default’ appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case 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 as contemplated either by the Act or by other Acts referred to above.
12. There cannot be any doubt or controversy that mere default is not sufficient but it must be wilful default for the purpose of obtaining an order of eviction under Section 10 of the Act. The main ground of attack in the present C.R.P. by the revision petitioner – tenant is that the landlord had not chosen to enter into the witness box at all and hence, whatever may be the nature of explanation given by the tenant, inasmuch as there is no evidence on behalf of the landlord, the same cannot be styled as wilful and hence on the ground of mere default, an order of eviction cannot be made. The learned Counsel representing the landlord had placed strong reliance on Viran Co. Lubricant Oil Dealers v. Durgam Punishottam (Died) per LRs. and Ors. , wherein the learned Judge of this Court held that where the question can be decided on documentary evidence, proceedings not vitiated by non-examination of the landlord and accordingly the order of eviction made by the Appellate Court was upheld. The learned Counsel also placed strong reliance on Kollipara Venkat Rao (Tenant) v. Moturi Lakshmi Sulochana and Anr. , wherein the learned Judge held that the question whether subsequent events of non-payment of rent can be taken into account ceased to be res integra, long back and successive and successful defaults committed by the petitioner in the instant case, an order directing eviction cannot be faulted with and accordingly, the C.R.P. was dismissed. The learned Counsel also placed strong reliance on Karamchand Deojee Sanghavi v. Tulshiram Kalu Kumawat 1992 (1) R.C.R. 118, while dealing with the aspect of arrears of rent under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the learned Judge held onus would always be on tenant that he has paid the rent and mere statement in written statement that tenant paid the arrears will not shift the onus from tenant to landlord. The learned Counsel also placed strong reliance on the decision of Kerala High Court in Damodaran v. Gerald 1980 (2) R.C.R. 693. The learned Counsel representing the revision petitioner-tenant placed strong reliance on Gopal Krishnaji Ketkar v. Mohammed Haji Latif and Ors. , Sri Venkateswara Oil Co., Tirupathi v. Guduru Jalaja Reddy and Ors. (DB) and Ramchandram Mirchandani v. India United Mills Ltd. and Ors. , for the proposition that in view of the fact that the landlord had not entered into the witness box adverse inference may have to be drawn. There cannot be any doubt or controversy relating to this proposition. It would be always just in a rent control proceeding that the party or person having knowledge about the facts to enter into the witness box and depose about the facts. It may be that there may be cases that on the strength of the clear admissions made by the tenant, the landlord need not establish anything more and on the strength of such admissions, the tenant may be liable for eviction on one or the other ground specified under Section 10 of the Act. This would depend upon the facts and circumstances of the particular given case and no hard and fast rule as such can be laid down in this regard. Be that as it may, it would be always desirable that either the party or the person having knowledge about the facts to enter into the witness box and depose about the facts. Be that as it may, the present matter due to the misfortune of the tenant does not stop there. As can be seen from the material available on record, before this Court the landlord moved C.M.P.No. 13667 of 2004 praying for a direction to direct the tenant to pay arrears of rent of Rs. 98,364/- and also direct the tenant to continue to pay the future rents regularly and in the counter-affidavit a stand was taken that an amount of Rs. 47,334/-is lying with the landlord to be adjusted towards future rent. On a careful scrutiny of the affidavit and the counter-affidavit, the counter-affidavit is as vague as vagueness can be. Hence, even if the subsequent events are taken into consideration, it is clear that the tenant is due to the landlord heavy amounts. No doubt, there is some controversy relating to the actual amount due. The respective parties are taking different stands relating to the actual quantum. However, the peculiarity is that there is no serious controversy between the parties that even subsequent to the filing of the eviction petition, during the pendency of the proceedings, the tenant has not been regular in payment of rents, and huge arrears had mounted up. This fact is clear from the fact that this Court recorded on 10-8-2005 that the revision petitioner – tenant had delivered the D.D. for Rs. 34,500/- today and the Counsel representing the landlord had received the same in protest without prejudice to his contentions. No doubt, the Counsel requested time to verify the actual amount due in this regard. As already referred to supra, though there is some controversy relating to the actual quantum of the remaining amount due between the parties, the fact remains that huge arrears are to be cleared by the tenant to the landlord, it may be that the landlord and the husband of the tenant are brothers. In the light of the reasons recorded in detail though by virtue of the non-examination of the landlord, an adverse inference as contended by the tenant may have to be drawn, apart from the concurrent findings which had been recorded by both the Courts below coupled with the subsequent conduct of the tenant during the pendency of proceedings inasmuch as subsequent events were brought to the notice of this Court, this Court is of the considered opinion that the said events can be taken into consideration and in view of the same, in the peculiar facts and circumstances of the case, despite the fact that the landlord had not entered into the witness box, this Court is of the considered opinion that the order of eviction made can be sustained in the light of the subsequent events. In view of the findings recorded above, this Court is of the considered opinion that the C.R.P. is devoid of merit and accordingly, the same shall stand dismissed. In view of the close relationship between the parties, this Court makes no order as to costs. The tenant is granted FOUR MONTHS time to vacate the premises.