ORDER
S.V. Maruthi, J.
1. These two revisions are filed against the common order of the Principal Subordinate Judge, Visakhapatnam in R.C.A. Nos. 17 and 18 of 1988.
2. In both these revisions, landlord is the petitioner.
3. Landlord filed a petition for eviction of the respondent-tenant in R.C. No. 40 of 1981 on the file of the Principal District Munsif-cum-Rent Controller, Visakhapatnam, on three grounds, viz., wilful default in payment of rent, bona fide personal requirement of the premises and sub-letting the premises without the consent of the landlord. The tenant also filed R.C.C. No. 12 of 1981 for permitting him to deposit the rents in the Rent Control Court. The Rent Controller dismissed the R.C.C. No. 40 of 1981 filed by the landlord and allowed R.C.C. No. 12 of 1981 filed by the tenant permitting the respondent-tenant to deposit the rents in the Court in the name of the petitioner. On appeal, the learned Principal Subordinate Judge confirmed the findings of the Rent Controller in both the petitions and dismissed the R.C.A. Nos. 17 and 18 of 1988 filed by the landlord, against which, the present revisions are filed.
4. Since the landlord himself did not press the ground of sub-letting, no findings were given on this issue by the Courts below.
5. On the question of wilful default, the Rent Controller held that the tenant paid the rents that were due to the landlord to the Municipality towards the payment of property tax and by notice dated 11-1-1981 (Ex.B-18) informed the landlord that the rents were paid towards the arrears of property tax and, therefore, there was no wilful default in payment of rent. The Rent Controller also observed that the payment of property tax from out of the current rents due to the landlord did not amount to wilful default. In support of this proposition, he relied on the judgment of this Court in H.K.A. Hussain v. Krishnaveni, 1987(1) ALT 479 .
6. The appellate authority held that “The tenant issued a notice under Ex.B-18 showing the payments made to the Municipality. But the tenant did not receive any reply either from the landlord or from the Manager of the Estate. The payments as per the details furnished by the tenant under Ex.B-18 would go to show that he had paid the taxes from the current rents, and he had not paid the same from out of the arrears of rents. The payment of taxes from out of the current rents due to the landlord does not amount to wilful default.” The appellate authority also relied on the judgment in H.K. Hussain’s case (1 supra). Holding as above, the appellate authority confirmed the finding of the Rent Controller as regards wilful default.
7. On the question of bona fide personal requirement the Rent Controller held that the landlord issued notices Exs.B-3, B-2 and B-4, under which, he demanded the tenant to enhance the rent from Rs. 300/- to Rs. 900/- as the Municipality had increased the property tax. However, the tenant enhanced the rent only to Rs. 400/- with effect from 1-4-1979. Since the demand of the landlord to enhance the rent from Rs. 300/- to Rs. 900/- was not accepted by the tenant, the present petition for eviction was filed on the ground that the premises was required for bona fide personal requirement. Therefore, the Rent Controller held that the requirement of the premises is not bona fide and accordingly dismissed the eviction petition.
8. The appellate authority held that the manager of the landlord wrote a letter to the respondent on 26-1-1979 under Ex.B-2, in which, he demanded. enhancement of rent on the ground that the Municipality had enhanced the tax and therefore he demanded Rs. 900/- from 1-4-1979 onwards and since the tenant failed to pay the same, he asked the tenant to vacate the petition schedule premises and the old rent of Rs. 300/- will not be accepted. Therefore, the appellate authority held that the requirement of the landlord is not bona fide.
9. The first question to be considered is, whether there is wilful default in payment of rent.
10. To consider this issue, it.is necessary to refer to the letter written by the respondent under Ex.B-18, dated 11-1-1981. In Ex.B-18, the respondent gave the following particulars:
“1. The existing rent at the rate of Rs. 300/-
per month from 1-12-78 to 1-3-79 for a
period of four months. 1,200-00
2. Enhanced rent at Rs. 400/-per month
from 1-4-79 to 1-1-81 for a period
of 22 months. 8,800-00
3. Paid to the municipality by way of
cash on 22-1-79 towards arrears of tax. 1,033-76
4. Paid to the Municipality by way of
cheque No. 071007 on 6-11-80 towards
house tax, Central Bank at Visakhapatnam. 2,067-52
5. Paid to the Municipality by way of
cheque No. 071042 on Central Bank at
Visakhapatnam dated 15-11-80
towards house tax. 2,067-52
6. Paid to the municipality by way of
cheque No. J 021930 on Allahabad Bank
at Visakhapatnam towards house tax
dated 26-12-80. 1,033-76
7. Cheque No. J 021934 for Rs. 3,797-44
dated 11-1-81 to be drawn on Allahabad
Bank at Visakhapatnam towards house rent. 3,797-44
Nil Balance 10,000-00 10,000-00
11. The above letter indicates the existing rent of Rs. 300/- per month from 142-78 to 1-3-1979 viz., Rs. 1,200/- was paid towards the property tax to the Municipality on 22-1-1979. In other words, from out of the rent payable for the months of February and March, 1979 (future rents) he paid property tax to the Municipality in the month of January, 1979. Again on 6-11-80 and 15-11-1980 the respondent paid Rs. 2,067-52 and Rs. 2,067-52 towards the property tax to the Municipality. Again on 26-12-80 he paid an amount of Rs. 1,033-76 towards property tax to the Municipality. On 11-1-1981 he paid the balance rent of Rs. 3,797-44 to the landlord. In other words, for the rents due from 1-12-78 to 1-1-1981 i.e., for a period of 26 months, he paid only Rs. 3,794-44 to the landlord as rent. There is no dispute about the payments made under Ex.B-18.
12. From the contents of the letter, it is to be ascertained, whether the payment towards the property tax was out of the current rents or accumulated rents. If the payment was from out of the current rents, then, it can be said that there was no wilful default. But, if the payment was made from out of the accumulated rents, then, it amounts to wilful default.
13. As can be seen from Ex.B-18, the rent payable from 1-12-78 to 1-3-79 for a period of four months is Rs. 1,200/-. The respondent paid an amount of Rs.l,033-76ps. towards property tax to the Municipality on 22-1-1979. As on 22-1-1979, the respondent had to pay an amount of Rs. 600/- towards rent. However, he paid Rs. 1,033-76 towards property tax. That means he had paid the future rents also i.e. rent payable for the months of February and March, 1979 towards the property tax to the Municipality. Therefore, there was no default in payment of rents for the period from 1-12-1978 to 1-3-1979. The second payment of tax was made on 6-11-1980, on which date, he paid an amount of Rs. 2,067-52 ps. The only inference that can be drawn from the above is that the respondent had not paid any rent from l-3-1979to 6-11-1980 to the landlord. The total period of non-payment of rent comes to one year and nine months. For all this period, the respondent accumulated the rents and paid the property tax to the Municipality on 6-11-1980. Similarly, he paid the property tax in an amount of Rs. 2,067-52 on 15-11-1980 and an amount of Rs. 1,033-76 on 26-12-80. In other words, the payments made towards property tax to the municipality on 6-11-1980,15-11-1980 and 26-12-1980 was from out of the rents payable from 1-4-1979 to December 1980. Therefore, even according to Ex.B-18 filed by the respondent himself, he accumulated the rents from April, 1979 till December, 1980 i.e. for a period of one year and nine months, and from those accumulated rents only, he paid the amounts towards property tax to the municipality on various dates in November and December, 1980. Further, there is also no evidence when the municipality issued the demand notices. The respondent filed only two demand notices viz., Ex.B-11 dated 8-8-1980 for an amount of Rs. 5,168-80 shown to be for the year ending September, 1980 and Ex.B-10 dated 23-12-1980 for an amount of Rs. 1,033-76 ps. shown to be for the year 1980-81. But, by August, 1980, itself, the respondent, as per Ex.B-18, was due in arrears of rent for a period of one year and six months. There was no other evidence that there were any other demand notices issued by the municipality prior to Ex.B-11 demand notice dated 8-8-1980. Therefore, in the absence of evidence of demand notices being issued by the municipality demanding payment of property tax, the tenant cannot accumulate the rents for a number of months and pay the tax and contend that the payment towards property tax to the municipality was the current rent and, therefore, he should be absolved from the accusation of wilful default. It is true that this Court in H.K.A. Hussain’s case (1 supra), held that “If the current rent due by the tenant is diverted for payment of municipal taxes the tenant is discharging the obligation of the landlord and the landlord cannot have any grievance because instead of the tenant paying the rents to him directly the rents are routed through payment of municipal taxes. The obligation to pay the municipal taxes cannot be resisted by the landlord and instead of paying the rent amount directly to the landlord the payment is made to the municipal authorities and obligation of the landlord to pay the municipal taxes is discharged thereby. In the event of accumulated rents the wilful default has already occurred and this cannot be wiped out by payment of the accumulated rents towards the municipal taxes…..” I have already referred to earlier that in Ex.B-18, the tenant himself has stated that the rent payable from 1-4-1979 to 1-1-1981, namely, for a period of one year and nine months, he had accumulated the rents and he paid the tax only on 6-11-1980,15-11-1980 and 26-12-1980. When he paid the first payment on 6-11-1980 towards property tax to the Municipality, the tenant had accumulated the rents for a period of one year and seven months, whereas he paid the tax of Rs. 2,067-52 ps. only. Further, it is also clear from the demand notices Exs.B-10 and B-ll that tax was not paid till 11-8-1980 when the first demand notice was issued. The second demand notice was issued in Decemeber, 1980. Till such time, there was no demand by the municipality demanding the occupier to pay the property tax. Therefore, the respondent ought not to have accumulated the rents till August, 1980, when he paid the first instalment of tax. I am, therefore, of the view that non-payment of rent for the period from 1-4-1979 toll-8-1980 and payment of tax from out of such accumulated rents does not amount to paying the tax from out of the current rents, but amounts to payment of property tax from out of the accumulated arrears of rent. Further, the fact that he paid the balance amount of Rs. 3,797-44 ps. on 11-1-1981 to the landlord through a cheque also indicates that the respondent had accumulated the rents. The last instalment of property tax of Rs. 1,033-76 ps. was paid on 26-12-1980. As per the version of the tenant himself, he is paying Rs. 400/- per month from 1-4-79. Therefore, the rent of Rs. 3,797-44 ps. sent by way of cheque on 11-1-81, would represent rent for a period of nine months. When the tenant last paid an amount of Rs. 1,033-76 ps. as tax on 26-12-80, there was no reason why he should pay an amount of Rs. 3,797-44 ps. on 11-1-1981 within a gap of fifteen days. It would, therefore, undoubtedly represent accumulated rents.
14. I am aware of the limitations under Section 23 (sic.22) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, that in a case where there is a concurrent finding of fact by the Courts below, this Court, in exercise of its power under revisional jurisdiction under Section 23 of the Act, cannot interfere. In Dattonpant v. Vithal Rao, the Supreme Court held that-
“Where the findings of fact recorded by the Appellate Court were not found to be such by the High Court as to justify the exercise of its revisional power under Section 50: Held that there were not such pressing ground which would justify the Supreme Court upsetting the views of the High Court confirming those of the lower Appellate Court.”
15. Counsel for the respondent Sri Subrahmanya Narsu vehemently contended that this Court in a revision under Section 23 of the Act, cannot interfere with the findings of fact and he relied on the following observations of the Supreme Court in Sri Rajalakshmi Dyeing Works v. Rangaswamy, wherein it was held that “A concurrent finding, based on evidence, that the landlord did. not bona fide require the premises for his own use and occupation is not a finding which can be touched by the High Court exercising jurisdiction under Section 25…..”.
16. In K.A. Anthappai v. C. Ahammed, the Supreme Court held “The question whether the building is required bonafide by the landlord for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with by the exercise of the revisional jurisdiction under Section 20…..”.
17. Counsel for the respondent also relied on the decision of the Supreme Court in Chetar Sen Jain v. Addl. Dist. Judge-III, wherein it was held that concurrent finding that no vacancy had occurred cannot be interfered with.
18. In Kolla Veeraswamy v. Gondesi Nagarathamma, this Court held that-
“Since the findings of the lower Courts based on appreciation of evidence no scope for interference with the order impugned. Order of eviction upheld.”
19. I am aware of my limitations while exercising the power under Section 23 (sic .22) of the Act. If the findings are based on material evidence and on cogent and convincing reasons, it is certainly not open to me to interfere with the same. I have already referred to the reasons given by the trial Court as well as the Appellate Authority while arriving at the finding that there was no wilful default committed by the tenant. The finding that there was no wilful default was based on Ex.B-2 which is the letter from the Manager of the petitioner to the respondent. According to the Courts below, the tax mentioned in Ex.B-2 was for the year 1977-78, whereas the respondent paid the tax for years 1979-81 which was evidenced by the tax receipts Exs.B-12to B-16 and the respondent also issued a letter Ex.B-18, showing the details of tax paid, to which the landlord has not replied to. However, the Rent Controller as well as the Appellate Authority had not considered the amounts paid towards tax on various dates as detailed in Ex.B-18 and how the rents were accumulated. The Rent Controller merely stated that there was no reply from the landlord and Ex.B-18 would go to show that the respondent had paid the taxes from the current rents. The Rent Controller as well as the Appellate Authority misconstrued the document and have not applied their minds to the contents of the document. I have earlier referred to the contents of Ex.B-18 and how the tenant had accumulated the rents from 1-4-1979 to November, 1980. It cannot be said that the rents from 1-4-79 to November, 1980 are current rents, which were paid towards property tax due to the municipality. Therefore, I am of the view that the finding of the Rent Controller as confirmed by the Appellate Authority was based on misconstruction of Ex.B-18 and not based on material evidence. Therefore, it is open to this Court to interfere with the said rinding under the revisional power. In this connection, I may also refer to the observations of the Supreme Court in Ram Pass v. Ishwar Cnander, wherein it was held that-
“Thus the plea that it was impermissible for the High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the appellate authority, however erroneous they be, would not be, having regard to the language in which the revisional power is couched, tenable. In an appropriate case, the High Court can reapprise the evidence if the findings of the appellate Court are found to be infirm in law.”
20. I have already pointed out the infirmity in the findings of the Rent Controller as well as the Appellate Authority. Ex.B-18, on the face of it, makes it clear that the tenant has accumulated the rents from 1-4-1979 to November, 1980 and from out of such accumulated rents only, he paid the property tax to the municipality on 6-11-1980,15-11-1980 and 26-12-1980. Therefore, mere is wilful default in payment of rent.
21. This finding is enough for the disposal of this revision. However, since the issue of bona fide requirement was also argued, I will consider that aspect also.
22. The Rent Controller gave a finding that since the landlord demanded enhancement of rent under Exs.B-2, B-3 and B-4 on the ground that the municipality had enhanced the property tax and as the tenant failed to comply with the same, the landlord had filed the eviction petition and therefore the premises was not required for the bona fide use of the landlord. It is true that the landlord issued notices demanding rent at enhanced rates. The mere fact that the landlord issued notices asking the tenant to pay the rent at enhanced rate does not make the requirement of the landlord not bona fide. The Government of India issued circulars from time to time directing the authorities to revise the rent after every five years. Therefore, if the landlord who is the owner of the premises requests the tenant to enhance the rent, and thereafter initiates proceedings for eviction on the ground that the premises is required for his bona fide personal use, it does not automatically follow that the personal requirement of landlord is not bona fide. The claim of the landlord was that he was a minor at the time when the suit notice was issued seeking eviction of the tenant and that he wanted the premises for starting a business in electronics. The Rent Controller without considering whether the premises was actually required for starting a business by the son who became a major after the rent control proceedings were initiated, gave a finding that the requirement of the landlord is not bona fide. I have already stated that no lack of bona fides can be inferred on the ground that the landlord issued a notice demanding enhancement of rent. It is for the landlord to establish that the premises was required for his personal occupation. On the facts of this case, both the Courts below have not gone into the evidence and they have merely relied on three notices issued by the landlord asking for enhancement of rent and gave a finding that the requirement of the landlord was not bona fide. On this ground, I would have remanded the matter to the Rent Controller for the purpose of holding further enquiry, whether the personal requirement of the landlord is bona fide or not, however, in view of my finding that there was wilful default in payment of rent, it is not necessary for me to remand the matter to the Rent Controller to ascertain whether the requirement of the landlord is bona fide or not.
23. In the result, C.R.P. No. 180 of 1992 is allowed with costs and the judgments of the Courts below are set aside. Consequently, C.R.P. No. 442 of 1992 is also allowed. With costs.
24. The tenant is given six months time for vacating the premises. He shall vacate the premises on or before 22nd September, 1994; and permitted to continue in the premises subject to the condition that he continues to pay the admitted rent till 22nd September, 1994.
