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PETITIONER: DAKAYA & DAKAIAN

       Vs.

RESPONDENT: ANJANI

DATE OF JUDGMENT12/10/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR  383            1995 SCC  (6) 500  1995 SCALE  (6)73

ACT:

HEADNOTE:

JUDGMENT:                          ORDER      Leave granted.      Heard learned  counsel for  the parties. This appeal is directed against  the decision  of the  High Court of Andhra Pradesh dated  February 13,  1995 passed  in Civil  Revision Petition No.2824 of 1994. By the said impugned judgment, the Andhra  Pradesh   High  Court  has  dismissed  the  revision application made against the order dated July 4, 1994 of the Additional Chief  Judge, City  Small Causes Court, Hyderabad in R.A.No.23  of 1992  affirming the  order dated  April 29, 1992 passed by the Prl. Rent Controller, Secunderabad it R C.No.316 of 1988.      The  respondent-landlady   made  an  application  under Section 10  of the A.P. Buildings (Lease, Rent and Eviction) control Act,  1960 (hereinafter referred to as the A.P. Rent Act) for  eviction of  the tenant appellant on the ground of wilful default  of payment of rent for the period September, 1988 to  November, 1988  amounting to Rs.1125/-. There is no dispute in  this case  that the  tenant failed  to make  the payment within  the stipulated  period for  the said months. It, however,  appears to  us that the landlady gave a notice to the  tenant on  December 6, 1988 claiming payment of rent for the  said months  of September,  1988 to November, 1988> The landlady,  however, demanded surrender of the tenancy of the tenant  within one  week from the date of receipt of the notice dated  December 6,  1988. The tenant initially sent a money-order for  a sum of Rs.375/- being the monthly rent on December 7,  1988 and  such amount  has been received by the landlady and  accepted by  her. Within five days thereafter, on December  12, 1988,  the tenant  sent a  Bank  Draft  for Rs.1125/- and it is an admitted position that such draft was received  by  the  landlady  before  finding  the  suit  for eviction. The  said draft, however, has not been encashed by the landlady and the same has been deposited before the Rent Controller  in   the  eviction   proceedings.  The  Eviction

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Petition was  filed before  the Rent  Controller on December 19, 1988.      It has been held by the Rent Controller that the tenant having committed wilful default, the landlady is untitled to get the  order of conviction. Accordingly, order of eviction was made.  The said  view was upheld appeal and as aforesaid the revision application was dismissed by the High Court.      Mr.Dhruv  Mehta,  learned  counsel  appearing  for  the appellant, has  drawn our  attention to the decision of this Court in  the case  of S.  Sundaram  Pillai  etc.  Vs.  V.R. Pattabiraman (1985  (2) SCR  643 =  AIR 1985 SC 582). In the said decision,  the provisions  of Section  10 of  the Tamil Nadu Buildings  (lease and  Rent Control) Act, 196 was taken into consideration. It may be indicated here that Section 10 of the  Tamil Nadu  Buildings (Lease  and Rent Control) Act, 1960 is part material similar to Section 10 of the A.P. Rent Act excepting that in Tamil Nadu Act an explanation has been added to  the proviso to Sub-Section (2) of Section 1 of the Tamil Nadu  Act. The  said explanation provides that for the purpose of  sub-section (2)  of Section 10 of the Tamil Nadu Act, default  to pay  or tender  rent shall  be construed as wilful, if  the default  by the  tenant in  the  payment  or tender of  rent continues  after the  issue  of  two  months notice by  the landlord claiming the rent. This Court in the aforesaid case  of  S.Sundaram  Pillai  has  indicated  that default per  se cannot be construed as wilful and keeping in mind the  beneficial purpose  of the Rent Act to protect the eviction of  the tenant, if the payment has been made before the institution  of  the  suit,  the  cause  of  action  for instituting of  the suit,  will vanish. In the instant case, immediately on  receipt of  demand of  payment of  rent, the tenant initially  sent a  sum of Rs.375/- by money order and thereafter a  bank draft  for Rs.1125/-  covering the entire period of default from September, 1988 to November, 1988 was sent to  the landlady.  It, therefore,  appears to  us  that there was  no occasion  to proceed on the footing that there was a  wilful default for which an order for eviction of the tenant was  to be passed. At the tenant had already sent the Bank draft  coving the  entire default,  there was  also  no occasion for  the  Rent  Controller  to  direct  deposit  of appears within  the stipulated period. In our view, the Rent Controller, the  first appellate  court, and  the High Court have failed  to appreciate  the incidence  of tendering  the entire amount  under default  before the  institution of the suit.  As  a  result,  the  courts  below  have  erroneously proceeded on  the footing  that  there  had  been  a  wilful default for  which the landlady was entitled to a decree for eviction.      We may  indicate here  that the learned counsel for the appellant has  submitted that the tenant will suffer serious prejudice if  an order  of eviction is maintained because he is carrying  on his  business in  the tenanted premises. The learned counsel  has also  submitted that  if it commends to this   Court    that   interference    under   discretionary jurisdiction under  Article 136  of the  Constitution is not warranted unless  the tenant is prepared to pay a reasonable and fair market rent, the tenant-appellant is willing to pay such monthly  rent as  may appear  just and  proper to  this Court, so  that the  order of  eviction is set aside and the appellant is permitted to continue his possession.      It appears  to us that the tenant-appellant is carrying on business  in the  disputed  premises  and  the  order  of eviction cannot  but affect  his interest seriously. It also appears to  us that  whether wilful or not, the fact remains that the  tenant defaulted  in payment  of rent  for several

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months for  which  the  landlady,  stated  to  be  poor  and helpless widow,  has suffered  considerable  prejudice.  It, therefore, appears to us that it will be consonant to equity and justice  if the  interference with the impugned order of eviction is  made in  this appeal  with a  direction to  the tenant to  pay fair and reasonable rent to which the tenant- appellant is  ready and  willing. Considering  the facts and circumstances of  the  case,  we  set  aside  the  order  of eviction by directing that the tenant-appellant would pay to the  respondent-landlady   the  rent  for  the  premises  in question with affect from October 1, 1995 @ Rs.550/- (Rupees five hundred  fifty only)  per month.  The  appellant-tenant will also  pay any  other amount,  if remains unpaid towards the payment  of rent  at the  old rate of Rs.375/- per month till September  30, 1995  within a  period of six weeks from today. In  default, the  appeal will  stand  dismissed.  We, however, make it clear that this order will not preclude the landlady to  seek eviction  of the  tenant in future on such grounds  as   may  be   available  in  law.  The  appeal  is accordingly allowed without any order as to costs.