& Company Pvt. Ltd. Vs. Dundoo Balkrishnam Bombay  INSC 215 (5 April 1994)
S. (J) Mohan, S. (J) Mukherjee M.K. (J)
1994 SCC (4) 734
appellant-tenant suffered a decree for eviction under the Andhra Pradesh
Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereafter referred to
as 'the Act') on two grounds - (1) wilful default in payment of rent and (2)
bona fide need of a non-residential building for starting a business. That
decree was affirmed in the Court of Appeal. The revision against the same was
dismissed in limine. In assailing the findings, Mr K.K. Venugopal, learned
Senior Counsel, would submit that as regards the bona fide need, the petition
for eviction does not plead, much less prove the necessary requirements of
Section 10(3)(e)(iii) of the Act. In other words, he has to plead that he was
not occupying a nonresidential building in the city or in possession of such a
premises. Such a plea is totally absent. As laid down by this Court in Hasmat Rai
v. Raghunath Prasad1 there must be pleas and proof thereof on these aspects.
Therefore the petition on this ground of bona fide need was liable to be thrown
out for lack of necessary pleadings.
regards the arrears, there is no finding that there was wilful default on the
part of the appellant-tenant. On the contrary, what has been found by the trial
court is negligence or indifference. As a matter of fact the tenant had been
lulled into a belief that the rent collector of the landlord would come and
collect the rent. Because of this belief he did not pay the rent in due time.
At no point of time, the tenant was informed that he was to pay 1 (1981) 3 SCC
103, 109: (1981) 3 SCR 605, 612 735 regularly. On the contrary there had been acceptances
of the rents by the landlord at intermittent intervals. On this aspect the law
has been laid down by this Court in Rashik Lal v. Shah Gokuldas2. That ratio
ought to have been applied by the courts below. Then against in S. Sundaram Pillai
v. V.R. Pattabiraman3 what is talked of is reckless negligence. There is no
such recklessness in this case.
it is submitted that the impugned judgments are liable to be set aside.
opposition to this Mr K. Parasaran, learned Senior Counsel would urge that as
regards arrears the appellant was issued a notice demanding arrears in the
first instance for the period 1-2-1972 (sic)
to 31-1-1972. In spite of such a notice, no step
whatever was taken. Repeated reminders as seen from the various exhibits clearly
show how the tenant had wilfully defaulted in payment of rents. In fact in the
notice dated 15-10-1972, it has been clearly stated that
there have been repeated and numerous wilful defaults in due payment of rents.
The plea was met by stating that there was negotiation between landlord and
tenant and the tenant was expecting adjustment of the amount incurred towards
the repairs, as against the rent. Therefore, the plea that there was no wilful
default is not correct. The courts below have rightly concluded the issue
against the tenant on this aspect. This alone would be sufficient to uphold
eviction. The case cited on behalf of the tenant in this regard will have no
relevance because Rashik Lal v. Shah Gokuldas2 dealt with the case of habitual
default. S. Sundaram Pillai v. V.R. Pattabiraman3 dealt with the scope of the
provisos to Section 10(2)(i) of the Tamil Nadu Buildings ( Lease and Rent
Control) Act, as to the deeming provision and the wilful default in the
context. That case will have no application to the facts here.
the second ground, no doubt, there was no specific plea that the landlord was
not occupying a non- residential building of his own nor that he was entitled
to possession of any such building. Nevertheless, the parties had adduced
evidence with full knowledge relating thereto and understood the scope of their
case and took the trial.
it is too late for the tenant to resile and urge the ground of non-pleading.
have carefully considered the above submissions. As regards the arrears we find
that the tenant was all along contending adjustment of rent towards repairs as
found from the trial court's judgment. Therefore, the plea of the tenant was
that he had incurred such an expenditure on repairs which requires to be
adjusted as against the rent.
we also find from the records that there are several reminders calling upon the
tenant to pay the rent dated 2-1-1972 even 5-6-1971 P-3, 10-7-1971 P-4, 8-9-1971 P- 5, 10-1-1972 P-6, 12-6-1972 P-7, 12-7-1972 P-8, 29-9-1972 and 15-10-1972. In the last of the notices what is stated by the landlord
'is as follows:
view of your repeated and numerous wilful defaults in due payment of rents and
as my clients by my earlier notices have already 2 (1989) 1 SCC 542 3 (1985) 1
SCC 591 736 terminated your tenancy with effect from the end of September 1972
my clients are not bound or prepared to receive or encase the said cheque and
the same is returned to you herewith.
my clients bona fide intend to start a hotel business in the premises ]eased to
you after making suitable additions and alterations to the premises. They are
there, in bona fide need of the said premises for their own occupation." 6.Under
these circumstances the conclusion is inescapable that the tenant had committed
wilful default in payment of arrears of rent. However, what is pressed into
service by Mr Venugopal is the decision of this Court in Rashik Lal v. Shah Gokuldas
case2. No doubt there are observations in the concluding paragraph of said judgment
that the landlord must inform the tenant about payment of rent where the tenant
had been lulled in the belief that intermittent payments could be accepted. We
have got to point out, as rightly urged by Mr Parasaran however, the language
under this Act is totally different and therefore this ruling has no
application. We find the conduct of the tenant not paying the rent in spite of
repeated reminders to which just now we have alluded will constitute default.
The case of S. Sundaram Pillai3 has also no application because as is rightly
urged by Mr Parasaran, that dealt with the scope of the proviso under Section
10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Nevertheless
where there is utter negligence or reckless negligence as seen from the
non-payment of rent in spite of repeated reminders, the conclusion that it was wilful
could easily be sustained.
to the plea of bona fide need, no doubt there is no specific plea as is
required under Section 10(3)(a)(iii), yet we are unable to hold that the
finding in this regard is in any way vitiated. The parties have gone to Rent
Controller and understood the scope of their case.
is a statement of the landlord wherein he has stated as follows:
wanted the premises for constructing a big South Indian style hotel as it is a
suitable place and in view of the encouragement we got from the Tourism
department. We got the adjacent premises vacated for that purpose and till
today it is kept vacant. The place is centrally located and well-suited for the
hotel. We have already started a hotel in the name of Hotel Park Lane, on the western style.
want to start a big hotel with several storeys consisting of about 300 rooms in
it." Unfortunately for the tenant it has not been elicited whether the
adjacent premises is non-residential. No doubt law requires as laid down in Hasmat
Rai v. Raghunath Prasad' that there must be a specific plea and proof thereof.
Even in the absence of such a plea where the evidence has been let in this case
and this was not seriously challenged either in the Court of Appeal or in the revisional
court, we are unable to differ from that finding.
the result, the civil appeal will stand dismissed.
shall be no order as to costs.
regards time to vacate as agreed to by both the learned counsel, time is
granted till 31-12-1994 to hand over vacant peaceful
possession. However, this shall be subject to the usual undertaking to be filed
by the tenant within four weeks from today. No costs.