ivil Appeal No 4108 of 1982
From the Judgment and Order dated 2312
1981 of the Andhra Pradesh High Court in CRP No 3547 of 1981
PP Rao R Venkataramani VG Pragasam and Satya Mitra Garg for the Appellant
P Krishna Rao B Krishna Prasad and KK Gupta for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This is a tenant s appeal by special leave against the order of eviction from a commercial prem ises at Gudur in Andhra Pradesh
The Controller the Appel late Authority and the High Court have concurrently found that the appellant was a wilful defaulter liable to be evicted
Under document No 1327 of 1969 a thirty year lease with an annual stipulated rent was granted in favour of one Narayanan a partner of the hotel for a term of 30 years beginning from 9th of 727 September 1961
For the first 15 years rent was stipulated at the rate of Rs 150 per month and for the second span of 15 years rent was to be escalated to Rs200 per month and the tenant undertook to pay the rent by the 9th of every succeeding month
The lease deed further stipulated Out of the advance of Rs6500 the second party shall deduct every month Rs75 from the stipulated rent upto Rs 1500 and the balance of Rs5000 shall be paid back to the second party by the first party under valid receipt after the expiry of the lease period Thus by March 1971 the amount of Rs 1500 had been adjust ed and the landlord held Rs5000 refundable to the tenant
Action for eviction was initiated on the plea that the tenant had failed to pay the rent for a certain subsequent period
Courts below debated the main perhaps the only contention as to whether the plea of payment which the tenant advanced had been established
On behalf of the landlord the account books of the Hotel were placed and the benefit of section 34 of the Evidence Act was claimed
Lot of attention was bestowed in the Courts below on the question as to whether the oral evidence along with the presumption arising under section 34 of the Evidence Act had not established the position that no payment as claimed had been made
On the finding that payment had not been established eviction was ordered
Two contentions have been advanced by Mr PP Rao appearing for the appellant to maintain that the order of eviction was contrary to law and cannot be sustained
Reli ance is placed on section 7 of the Andhra Pradesh Buildings Lease Rent  Eviction Control Act 1960 hereafter Act  in support of the stand that the sum of Rs5000 which lay as advance in the hands of the respondent landlord was either refundable to the tenant or adjustable against rent and if out of the sum of Rs5000 the arrears were available to be adjusted the tenant was not at all in  default
It has next been contended that the lease of 1969 was for a term of 30 years certain and eviction has been claimed against a contractual tenant during the subsistence of the lease
Admittedly the lease does not have a forfei ture clause so as to bring the matter within the ambit of section 111g of the Transfer of Property Act
The application for eviction a copy of which is available on the record at p 10 of the second paper book refers to a notice in para graph 7 in the following terms 728 The petitioners caused a registered notice through their counsel dated 28101973 to the respondent demanding the rent due and also for the eviction from the schedule mentioned premises since the respondent has become a wilful defaulter
The respondent received the notice and has not chosen to give any reply
 It therefore follows appellant s counsel has contended that the lease remained unter minated and the right created under the lease cannot be taken away by filing an application for eviction on the plea of wilful default in the matter of payment of rent
Section 7 of the Act as far as relevant provides 7 2 Where the fair rent of a building has not been so fixed a the landlord shall not after the commencement of this Act claim receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent Provided that the landlord may receive or stipulate for the payment of an amount not exceeding one month s rent by way of advance b save as provided in clause a any sum paid in excess of the agreed rent whether before or after the commencement of this Act in consideration of the grant continuance or renewal of the tenancy of the building after such commencement shall be refunded by the landlord to the person by whom it was paid or at the option of such person shall be otherwise adjusted by the landlord
3 Any stipulation in contravention of sub section 1 or sub section 2 shall be null and void
 The lease deed described the amount of Rs6500 as advance at four places and stipulates adjustment of a sum of Rs 1500 out of it and the balance amount of Rs5000 to be paid back to the tenant after the expiry of the lease peri od
The provio to section 72a prohibits payment of any sum exceeding one month s rent by way of advance and sub section
3 declares the stipulation for payment of rent in advance beyond that of one month as null and void
729 The receipt of Rs6500 by the landlord was therefore contrary to law and opposed to public policy
A sum of Rs 1500 has already been adjusted in the manner indicated in the petition for eviction and the fact that a sum of Rs5000 was still held by the landlord was admitted there in
On the facts appearing on the record it is thus clear that the landlord held a higher amount than the rent due on the date when the petition for eviction was filed on the plea of wilful default of payment of rent
The stipulation of holding the excess amount of RS5000 free of interest to be refunded under a valid receipt after the expiry of the lease period is the null and void stipulation and the amount of Rs5000 in the hands of the landlord was an amount held by the landlord on account of the tenant on the date of filing of the petition for eviction
This Court in Mohd Salimuddin vs Misri Lal  Anr  had occasion to deal with a more or less similar situation arising under the Bihar Buildings Lease Rent  Eviction Control Act 1947
There a sum of Rs2000 had been advanced by the tenant to the landlord stipulating adjustment of the loan amount_against the rent which accrued subsequently
The landlord asked for eviction on the ground of arrears of rent by filing a suit
The trial court had decreed the suit but the lower appellate court reversed the decree by holding that the tenant was not in arrears of rent since the amount advanced by the tenant was sufficient to cover the landlord s claim of arrears
The High Court however vacated the appellate judgment and restored that of the trial court holding that the loan amount by the tenant was in violation of the prohibition contained in section 3 of the Bihar Act and the tenant was in arrears of rent and liable to be evicted
This Court set aside the judgment of the High Court by saying The view taken by the High Court is unsus tainable inasmuch as the High Court has lost sight of the fact that the parties to the contract were unequal
The tenant was acting under compulsion of circumstances and was obliged to succumb to the will of the land lord who was in a dominating position
If the tenant had not agreed to advance the loan he would not have been able to secure the tenan cy
 The Court referred to the doctrine of pari delicto and held that the same was not applicable against the tenant
In Ms Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla 730   Salimuddin s case came for consideration
This was also a dispute under the Bihar Act where two months  rent had been paid in advance by the tenant to the landlord on the stipulation that the advance amount would be liable to be adjusted towards arrears of rent whenever necessary or required
The Court held that the tenant could not be evicted on the ground of default in the payment of rent for two months even if the tenant failed to ask the landlord to make adjustment of the advance amount in the absence of any agreement requiring the tenant to inform the landlord as to when such adjustment is to be made
This Court said that when the Rent Act prohibited the landlord to claim such advance payment the tenant could not be consid ered to be a defaulter and the doctrine of pari delicto was not attracted to such a fact situation
Mr Rao building upon the ratio of these two decisions rightly contended before us that when the landlord had Rs5000 on tenant s account with him which he was holding for years without paying interest and against the clear statutory bar there could be no justification for granting a decree of eviction on the plea of arrears of rent
In view of the fact that the stipulation that the amount would be refundable at the end of the tenancy is null and void under section 73 of the Act the amount became payable to the tenant immediately and the landlord with Rs5000 of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months
The second contention advanced before us is equally weighty
The lease being for a term of 30 years is to expire in September 1999
As we have already said the lease did not stipulate a forfeiture clause and in the absence of a forfeiture clause in the lease leading to termination by forfeiture the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy
We are somewhat surprised to find that these irresisti ble defences were not advanced in the Courts below and the course of the litigation was confined to a consideration of section 34 of the Evidence Act
The appeal is allowed the concurrent decision of all the three Courts below directing the tenant to be evicted are set aside and the application for eviction is dismissed with costs throughout
Hearing fee in this Court is assessed at Rs3000
PSS Appeal allowed


Summary:
Clause 3e of Para 4 of the Swatantrata Sainik Samman Pension Scheme of the Government of India entitles a freedom fighter to pension for having become permanently incapaci tated during firing or lathi charge in the freedom struggle
The appellant applied for grant of pension on the ground that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by the police against freedom fighters
His claim of permanent loss of vision in the left eye was duly certified by Government doctors
The District Collector after making a detailed enquiry certified the claim of the appellant as a bona fide one and recommended his case for grant of pension
The State Government also appended their recommendation
The Ministry of Home Affairs however declined to grant pension on the view that loss of vision in one eye did not amount to permanent incapacita tion
A single Judge of the High Court dismissed appellant s writ petition and a writ appeal against the said order was also dismissed by a Division Bench
In this appeal by special leave it was contended for the respondents that the incapacitation under clause 3e must not only be permanent but it must also be a total one and since the appellant had not lost vision in both the eyes the incapacitation though permanent was only partial and not total and that the petitioner had not been able to produce any documentary evidence from official records of the relevant period in support of his claim
721 Allowing the appeal HELD 11 The words used in clause 3e of Para 4 of the Pension Scheme are permanently incapacitated and not permanently totally incapacitated
The measure of test thus laid down by the clause is the permanent nature of the incapacitation and not the total nature of the incapacita tion
If clause e were to be interpreted to include total incapacitation then a freedom fighter who has lost a leg or an arm cannot claim payment of pension on the basis of permanent incapacitation inasmuch as the incapacitation suffered by him is not of both the legs or both the arms
It would be height of injustice to freedom fighters to construe clause e in the said manner
1724F 725A B 12 In view of the certificate issued to him by the Government doctors that the appellant had suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle and the State Government authorities having after due enquiry accepted the bona fides of the appellant s claim and recommended his case for grant of pension the respondents were not justified in refusing to grant him pension under clause e of the Scheme
724G 726C 725E 2
No one can really expect official records to have been preserved for a period of 40 years to prove the treat ment given to a freedom fighter for the injuries sustained by him during the freedom struggle
Hence the objection relating to non production of official records of the reley ant period by the appellant to prove the sustainment of injury by him deserves outright rejection as well as out right condemnation
726B C