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PETITIONER: K.A. RAMESH & ORS.

       Vs.

RESPONDENT: SMT. SUSHEELA BAI & ORS.

DATE OF JUDGMENT:       13/02/1998

BENCH: S.B. MAJMUDAR, S.P. KURKUKAR

ACT:

HEADNOTE:

JUDGMENT:                THE 13TH DAY OF FEBRUARY, 1996 Present:              Hon’ble Mr. Justice S.B. Majmudar              Hon’ble Mr. Justice S.P. Kurdukar Mr. K.  Ramakrishna Reddy,  Sr.Advocate, Mr.  P.S. Narasimha and Mr. V.G. Pragasam, Advocate with him for the appellants. Mr. Subodh  Markandaya, Mr.  Ashok Kumar  Sharma,  Mr.  Alok Singh  and   Mrs.  Chitra   Markandaya,  Advocated  for  the respondents.                          O R D E R      The following Order of the Court was delivered: Leave granted.      With the consent of learned counsel for the parties the appeal was  finally heard  today and is being disposed of by this order.      The appellants are the tenants in the premises situated at  Secunderabad  in  Andhra  Pradesh.  Provisions  of  A.P. Building (Lease,  Rent &  Eviction) Control  Act, 1960 [‘the Act’  for   short]  govern   the  relationship  between  the appellants tenants and the respondent-landlords.      The short  question is  whether  the  appellant-tenants were whiling  defaulters in  payment of rent on which ground the decree  for possession  has been  passed by  the  courts below under  Section 10 of the Act. The arrears of rent were from July  1988 to  December 1988.  The appellants  sent   a telegram  dated   17th  December  1988  to  the  respondent- landlords calling  upon them  to issue receipts for the rent which they had already paid apprehending that the respondent ma make  out a case for default in payment of rent for these relevant months.  The landlords  responded by  giving  reply dated 19th  December 1988 stating that the rent was not paid and it  was not  correct to  say that  the receipts were not issued despite  payment of  rent for  the  relevant  months. Under these  circumstances the  appellant sent  a bank draft for the  entire arrears  on 02nd  February 1989.  Presumably having knowledge that the bank draft was being sent to them, the respondents  filed an Eviction Petition on 06th February 1989 and  it appear  that on  the next  date the  bank draft reached them.  They got  it encased.  On the ground that the appellants had  committed willful default in payment of rent

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for  the  relevant  months  the  eviction  proceedings  were prosecuted by  the respondents  before the  authority. These eviction proceedings  were  under  sub-section  (2)  (i)  of Section 10 of the Act. The said provision reads as under:      "10. Eviction of tenants:-      (1)................      (2) A  landlord who  seeks to  evict his  tenant  shall      apply to the Controller for a direction in that behalf.      If the Controller, after giving the tenant a reasonable      opportunity of  showing cause  against the application,      is satisfied.      (i) that  the tenant  nor paid or tendered the rent due      by him  in respect  of the building within fifteen days      after the  expiry of the time fixed in the agreement of      tenancy with his landlord or in the absence of any such      agreement, by  the last day of the month next following      that for which the rent is payable; or      (ii)...............      (iii)..............      (iv)...............      (v)................      (vi)...............      The Controller shall make an order direction the tenant to put the landlord in possession of the building and if the Controller is  not so  satisfied, he  shall  make  an  order rejecting the application:............      There is  a proviso  to the said Section which reads as under:      "Provided that  in any case falling      under clause (i), if the Controller      is  satisfied   that  the  tenant’s      default to  pay or  tender the rent      was   not    willful,    he    may,      notwithstanding anything in Section      11, give  the tenant  a  reasonable      time, not  exceeding fifteen  days,      to pay  or tender  the rent  due by      him to  the landlord up to the date      of such  payment or  tender and  so      such   payment   or   tender,   the      application shall be rejected."      It is  obvious that  if the  evidence  led  before  the Controller shows  that the  tenant had not committed willful default in  payment of  rent during  the relevant  time  for which grievance  is made  in the  Eviction Petition moved by the landlord,  then despite  what is  stated in Section 11 a reasonable time  has to be given to the tenant to pay up the amount. On  the facts  of  the  present  case,  we  fail  to appreciate how  it could  be said  that the said proviso was not attracted. it has to be seen that even months before the filing of  the Eviction  Petition the  tenants  had  made  a grievance by  sending a  telegram to the respondents on 17th December 1988 that though the rent was paid for those months receipts were  not issued.  Even theat  apart, by  sending a bank  draft   on  02nd  February  1989  when  there  was  no litigation between  the parties, full payment of arrears was tendered.  That   was  accepted  and  realised  pending  the eviction proceedings.  The clearly  shows that  there was no default at  all much less willful default on the part of the tenant in  paying the  rent for the months from July 1988 to December 1988.  Consequently, the  eviction proceedings were not required  to be  proceeded any  further as the aforesaid proviso shows  that even if the rent was not paid, there was a locus  penintentiae  with  the  appellant-tenants  to  get reasonable time not exceeding fifteen days for paying up the

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arrears by  showing that  default was  not  willful  and  if during the  time granted  by the  court the default was made good, the  application for  possession, in  that eventually, has to  be rejected.  In the  present case as the bank draft dated 02nd  February 1989  for the entire arrears sent prior to the filing of the proceedings, was already got encased by the respondent-landlords,  the proviso  got clearly complied with and  there remained  no occasion  for the Controller to again ask  the appellant  to pay  the very same amount twice over.  Therefore,   the  application   was  required  to  be summarily rejected.  However, it  was proceeded  further and resulted in  eviction order  which was  challenged in appeal unsuccessfully  and   further  before   the  High  Court  in revision, that  too  unsuccessfully  and  that  is  how  the appellants are before us.      Once the  aforesaid conclusion is reached, on the facts of this  case, it must be held that the eviction proceedings are liable  to be  dismissed. However, learned counseled for the respondents vehemently contended that even pending these proceedings there  was default on the part of the tenants as they  had  not  paid  rent  during  the  pendency  of  these proceedings. He heavily relied on sub-section (1) and (2) of Section 11 of the Act, which read as under:      "11. Payment  or  deposit  of  rent      during the  pendency of proceedings      of  eviction   :-  (1)   No  tenant      against  whom  an  application  for      eviction  has   been  made   by   a      landlord under Section 10, shall be      entitled to contest the application      before the  Controller  under  that      Section or  to  prefer  any  appeal      under Section  20 against any order      made by  the    Controller  on  the      application, unless  he had paid to      the landlord  or deposits  with the      Controller,   or    the   appellate      authority, as the case many be, all      arrears of  rent due  in respect of      the building  up  to  the  date  of      payment or deposit and continues to      pay or  deposit any  rent which may      subsequently become  due in respect      of   the    building,   until   the      termination  of   the   proceedings      before  the   Controller   or   the      appellate authority,  as  the  case      may be.      (2) The  deposit of rent under sub-      section (1)  shall be  made  within      the  time   and   in   the   manner      prescribed."      He submitted that under these circumstances a statutory right  arose   to  the   respondents  to   get  all  further proceedings stopped  and for  a direction  to the  appellant tenants to put the respondent landlords in possession of the building. In support of this contention, reliance was placed on sub-section (4) of Section 11 which reads as under:      "11(4). If  any tenant fails to pay      or   to   deposit   the   rent   as      aforesaid, the  Controller  or  the      appellate authority, s the case may      be, shall,  unless the tenant shows      sufficient cause  to the  contrary,      stop all  further  proceedings  and

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    make an  order directing the tenant      to put  the landlord  in possession      of the building."      We fail  to  appreciate  how  this  contention  can  be pressed into  service on the peculiar facts of this case. As we  have   seen  earlier,   the  eviction  proceedings  have themselves become infructuous once the bank draft dated 02nd February 1989 for the full amount of arrears was already got encashed by  the respondents.  That apart, even if there was any default  pending such  proceedings, it  was open  to the respondents to enforce the statutory right available to them under Section  11(1) read  with Section 11(4) of the Act for getting all  further proceedings  stopped  before  the  Rent Controller and  for asking immediate, decree for possession, and/or in  appeal of  the appellant-tenants  to request  the appellate  court   to  dismiss   the  appeal   and  put  the respondent-landlords forthwith  in possession  on account of such  default.   Nothing  of  this  sort  was  done  by  the respondents, If  they had  tried to  enforce this night, the appellants would  have got  an opportunity  to show  to  the Trial Court  or the Appellate Court, as the case may be that there was  sufficient cause  for not  passing such  an order under Section  11(4) of  the  Act.  That  opportunity  never became available  to the  appellants as  the respondents did not invoke this provision. It can, therefore, easily be said that the  respondents waived  this night  available to  them under the  Statute presumably  because they  themselves were satisfied on  getting full  payment of  arrears of  rent  by encashing  the   bank  draft   dated  02nd   February  1989, Consequently,  even   this  contention   cannot  be  on  any assistance to the respondents.      In the result, this appeal is allowed. The order passed by the  Rent Controller  and as  confirmed by  the appellate authority as  well as by the High Court is set aside and the eviction proceedings are dismisses with no order as to costs all throughout.