Dakaya
& Dakaian Vs. Anjani [1995] INSC 552 (12 October 1995)
Ray,
G.N. (J) Ray, G.N. (J) Majmudar S.B. (J)
CITATION:
1996 AIR 383 1995 SCC (6) 500 1995 SCALE (6)73
ACT:
HEAD NOTE:
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 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 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 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.
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