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CASE NO.: Appeal (civil)  7371 of 2002

PETITIONER: N.D. Thandani (Dead) By Lrs.                                     

RESPONDENT: Arnavaz Rustom Printer & Anr.                               

DATE OF JUDGMENT: 24/11/2003

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT: J U D G M E N T

R.C. LAHOTI,  J.

       The tenant is in appeal, by special leave, feeling aggrieved by  the judgment of the High Court holding the tenant liable to be evicted  from the suit premises on the ground available to the landlord- respondents under Section 10(2)(i) of A.P. Buildings (Lease, Rent &  Eviction) Control Act, 1960 (hereinafter ’the Act’, for short).  The said  provision entitles a landlord to evict the tenant on the latter’s failure to  pay or tender the rent within the specified number of days on its  becoming due.  The proviso appended to sub-section (2) provides for  the Controller allowing the tenant a reasonable period of time not  exceeding fifteen days to pay or tender the rent due by him to the  landlord calculated up to the date of such payment or tender, and  upon such payment or tender being made the prayer for eviction may  be refused if the Controller is satisfied that the tenant’s default to pay  or tender the rent was not wilful.  It is conceded at the Bar that the  tenant shall incur the liability for eviction only on a finding arrived at  by the Controller of ’wilful default’ on the part of the tenant.    This litigation has a history of around thirty years broken into  three rounds of litigation, each time the landlord having sought for the  eviction of the tenant on the ground of wilful default and twice the  tenant having successfully escaped the threat of eviction.  In the third  round he is struck by the findings arrived at and recorded in very  many details by the learned Rent Controller in his Order dated August  25, 1993, which has been upheld by the High Court in revision.

In an earlier round of litigation the tenant had come up to this  Court and this Court had, vide its order dated 12.1.1980, directed him  to deposit the then arrears within a period of two months and  continuously deposit the rent falling due thereafter, month by month,  by the 10th day of every month, with the Rent Controller.  Complaining  of the default once again having been committed by the tenant, the  landlords in the first instance served through their counsel a notice  dated 28.10.81 on the tenant, calling upon him to furnish details of the  rent deposited by him with the Controller.  The tenant through his  advocate gave a reply that all the arrears of rent were cleared.   However, no particulars as to challans by which the rent was deposited  with the Controller were furnished.  On 12.11.1981, the landlord  moved an application before the Controller for withdrawing the amount  deposited by the tenant, and his application was returned with an  endorsement by the office of the Controller that an amount of  Rs.216.25 paise only was lying deposited.  In a communication dated  12.11.1981, the landlord was informed by the tenant that there were  arrears to the tune of Rs.6,300/- which were all deposited in one go.  

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Here again, the details of challans were not furnished and in fact the  Controller also gave credit for the amount of deposit made by tenant  on the basis of a letter of the State Bank of Hyderabad certifying the  amount of deposit.  In the proceedings initiated by the landlord  seeking eviction of the tenant under Section 10(2)(i) of the Act, the  plea taken by the tenant was that the challans, evidencing the deposit  of rent with the bank, were sent to the Controller from time to time  through registered post.  He made a statement to that effect on  21.8.1989 when he was examined in the Court of Controller.  On a  prayer made by the landlord, 4 years after the date of the said  statement, the tenant was recalled for further cross-examination and  on 13.7.1993 he made available the challan showing deposit of  Rs.6,300/- and other challans also which he had kept with himself until  then.  Even these challans, when scrutinized, did not support the plea  of the tenant that the entire amount in arrears up to date had been  cleared.   

In exercise of the power conferred by Section 30 of the Act, the  Governor of Andhra Pradesh has framed the Rules called ’The Andhra  Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961’  (hereinafter ’the Rules’, for short).  Rule 5 of the Rules is relevant  which reads as under :

"5.(1) A tenant desirous of depositing the rent  under sub-section (5) of Section 8 or Section  9 or Section 11 shall deposit the same, if the  building concerned is in the City of  Hyderabad, in the State Bank of Hyderabad  and if the building is elsewhere, in the  Controller’s office or in the nearest treasury,  whichever is convenient, after obtaining  permission for the deposit of the rent from  the controller.

   (2) The challan accompanying the deposit of the  rent shall be in the Andhra Pradesh Treasury  Code in Form No.10 in triplicate and shall  specify :-  

 (a)  the name and address of tenant by  whom or on whose behalf the rent is  deposited;

 (b)  the name and address of the landlord  entitled to receive the rent deposited;

 (c)  the rent at which and the period for  which the rent is deposited;

 (d)  the description of the building in respect  of which the rent is deposited;

 (e)  the provision of the Act including the  circumstances under which the rent is  deposited; and

 (f)   the head of account to which the rent is  credited, namely :-

"P.II. Deposits and Advances \026 (Deposits  and bearing interest \026 C. Other Deposit  Accounts \026 Civil Deposits \026 Personal Deposits  \026 Personal Ledger Account of the Controller  or appellate authority, as the case may be".

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  (3) One copy of the challan for the deposit of  rent returned by the State Bank of  Hyderabad Controller’s Officer or treasury,  as the case may be, after endorsing thereon  the receipt of the amount deposited, shall be  delivered in the office of the Controller or the  appellate authority as the case may be.

  (4) On delivering one copy of the challan the  Controller or the appellate authority, as the  case may be, shall acknowledge its receipt  on the back of the challan retained by the  tenant and take necessary action for the  service of the notice of deposit on the person  or persons concerned within seven days of  the delivery thereof.  The notice of deposit  shall be served on the person or persons  concerned in one or other of the modes  specified in Rule 16.

  (5) Every Controller and every appellate  authority shall cause proper accounts to be  maintained in their offices for the rents  deposited under sub-section (5) of Section 8  or Section 9 or Section 11.

 (6)  A tenant against whom an application for  eviction has been made before the Controller  shall deposit all the arrears of rent due by  him, if any, in respect of the building within  such reasonable time, not exceeding 15  days, as may be specified by the Controller."

       A perusal of the above said Rule shows that the rule making  authority has taken care to meticulously frame the rule and lay down a  detailed procedure so as not to leave room for any controversy to arise  between the landlord and the tenant as to the payment of the rent.   The object of framing such rule is that merely because of litigation or a  strained relationship existing between the landlord and the tenant, the  landlord may not be harassed for realising the rent and he must be  able to collect and receive the rent regularly.  The tenant has to  deposit the rent through a challan as prescribed accompanying the  deposit wherein all the particulars provided for by sub-rule (2) have to  be given.  The challan is in triplicate.  One copy is to be delivered to  the Controller, after securing acknowledgment on another copy which  is to be retained by the tenant.  Such delivery of copy of the challan  containing particulars specified in sub-rule (2) enables the Controller  to maintain proper accounts and also to give notice of the deposit to  the landlord who can thereafter withdraw the amount so deposited.  A  failure to comply with the provisions of the rule will result either in the  deposit being lost in the jumble of hundreds of transactions which take  place in the treasury or bank everyday, or would result in failure by  the Controller in maintaining the accounts and giving notice to the  landlord.  Whatever be the situation, the landlord would be deprived of  the opportunity of receiving the rent regularly in spite of the tenant  having deposited the same.  The whole purpose behind enacting the  Rule will be frustrated because of the tenant’s negligence.   

Placing reliance on the decisions of this Court in S. Sundaram  Pillai & Ors.  Vs.  V.R. Pattabiraman & Ors., (1985) 1 SCC 591,  and a Full Bench decision of Andhra Pradesh High Court in Vinukonda  Venkata Ramana  Vs.  Mootha Venkateswara Rao & Anr., AIR  2002 A.P. 52, the learned counsel for the tenant-appellant submitted

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that a mere default by the tenant does not invite liability for eviction;  the scheme of the Act draws a distinction between ’default’ and a  ’wilful default’.  The inference as to ’wilful default’ cannot be drawn  unless the default is intentional, deliberate, calculated and conscious,  with full knowledge of legal consequences flowing therefrom.   However, the same decision which has been relied on by the learned  counsel for the appellants states that 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’.

The case at hand projects a picture where in spite of the leaning  of the law in favour of the tenant, if anyone deserves sympathy it is  the landlord and not the tenant.  As already noticed, this is the third  round of litigation complaining of default in payment of rent by the  tenant.  In the first round of litigation the rate of rent was alleged by  the landlord to be Rs.160/- per month which was denied by the tenant  who pleaded the rate of rent to be Rs.80/- per month only.  In the  litigation which ended in the apex court, the rate of rent was finally  adjudged to have been Rs.160/- per month and not Rs.80/- as was  pleaded by the tenant.  Not only does the law itself require the tenant  to pay or tender the rent month by month, the order of this Court  mandated the tenant to clear all the arrears of rent within two months  and thereafter to deposit the rent month by month and strictly observe  compliance with the orders of the Supreme Court.  The tenant did not  even thereafter comply with the provisions of Rule 5.  Huge amount of  arrears accumulated, which were cleared in one go.  Even other  deposits were not regularly made.  The tenant did not keep the  landlords informed of the deposits either directly or by complying with  the provision of the Rule.  The obligation of the tenant to pay or tender  the rent cannot be said to have been discharged unless and until the  landlords were posted with the information along with particulars  enabling them to withdraw the amount.  The legal notices served by  the landlords were not responded to in the desired manner so as to  put an end to their grievance.  A claim for eviction founded on the  simple ground of default in payment remained pending for years,  obviously because of the reluctance and the procrastinating tactics of  the tenant.  If this is not ’wilful default’ then what else can it be?  We  are clearly of the opinion that the High Court has rightly held the  tenant to be a chronic wilful defaulter.  The decree for eviction is fully  justified.

Before parting, and, in fairness to the learned counsel for the  parties, we may place on record a submission made  on behalf of the  appellant that in spite of the tenant having defaulted in payment of  rent for any period prior to the institution of the suit, if the arrears  have been cleared (though belatedly) and the landlord has accepted  the same, the default, if any, stands wiped out and the cause of action  for seeking eviction of the tenant based on the preceding default does  not survive.  Reliance was placed on a Full Bench decision of Andhra  Pradesh High Court in  Vinukonda Venkata Ramana Vs. Mootha  Venkateswara Rao and Anr. \026 AIR 2002 AP 52.  This decision takes  notice of two decisions of this Court (both by two judges benches)  reported as  Dakaya Alias Dakaiah Vs. Anjani - (1995)  6 SCC 500  and  K.A. Ramesh and Ors. Vs. Susheela Bai (Smt.) and Ors. -  (1998) 3 SCC 58.  An earlier decision by a Five-judges Bench of the  Andhra Pradesh High Court, namely, Pallapothu Narasimha Rao  and Anr. Vs. Kidanbi Radhakrishnamacharyulu - AIR 1978 AP 319  was brought to the notice of the Full Bench deciding Vinukonda  Venkata Ramana’s case (supra) but the Full Bench commented that  the Five-Judges Bench decision in Pallapothu Narasimha Rao and  Anr. (supra) is not good law because it fails to take note of the  Supreme Court’s decision in the case of Dakaya Alias Dakaiah  (supra).  The learned counsel for the respondent pointed out that the

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Five-Judges Bench decision of Andhra Pradesh High Court in  Pallapothu Narasimha Rao and Anr.’s case (supra) is based on a  Constitution Bench judgment of this Court in Mangilal Vs.  Suganchand Rathi \026 (1964) 5 SCR 239, which was not noticed in the  two Supreme Court decisions noted and followed by the Full Bench in  Vinukonda Venkata Ramana’s case (supra).  The learned counsel  for the respondent further submitted that this Court should hold the  decision of the Andhra Pradesh High Court in Vinukonda Venkata  Ramana’s case not  to be good law in view of the larger Bench  decision of that very Court in Pallapothu Narasimha Rao and Anr..   The issue is substantial and we would have certainly gone into it but  we find the present case is not an appropriate case for doing so.  It is  not the finding arrived at either by the trial court or by the High Court  that the amount of arrears had stood paid by the tenant to the  landlord prior to the initiation of proceedings for eviction by the latter.   The question of examining the effect of such payment does not,  therefore, arise in the present case.  On the contrary, the finding is  that the tenant was and has continued to remain in arrears upto the  date of the initiation of the proceedings, and the only question arising  for decision in the present case is whether the default can be said to  be ’willful’ or not.

The appeal is dismissed with costs throughout.

Still, to save the tenant from sudden eviction, we allow him time  upto 31.5.2004 for vacating the premises, subject to his filing an  undertaking on affidavit within four weeks from today, incorporating  the following terms and strictly complying therewith :

(i)     that on or before 31st May, 2004, the tenant shall  deliver vacant and peaceful possession to the  landlord and shall not induct anyone else in  possession or create any third party interest in the  tenancy premises;

(ii)   that the statement of the deposits made by the  tenant with all the relevant particulars, so as to  satisfy the Rent Controller and the landlord that all  the arrears have been cleared up to date, shall be  filed within four weeks from today; and

(iii)  the amount equivalent to rent calculated upto  31.5.2004 shall be deposited in advance within a  period of four weeks from today.

       Failing compliance with any of the terms, the decree for eviction  shall be available for eviction of the tenant-appellant forthwith.