K.A. Ramesh
& Ors Vs. Smt. Susheela Bai & Ors [1998] INSC 99 (13 February 1998)
S.B.
Majmudar, S.P. Kurkukar
ACT:
HEAD NOTE:
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 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 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 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.
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