THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITON No.1915 of 2006 Dated:- 23rd December, 2010 Between:- Rambharos Cut Piece Centre …Petitioner AND R.B.Patalay and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITON No.1915 of 2006 ORDER:- This revision is directed against the order dated 13.02.2006 passed in R.A.No.58 of 2004 by the Additional Chief Judge, City Small Causes Court, Hyderabad, (‘lower Appellate Authority, for brevity) whereby and whereunder, the order dated 17.12.2003 passed in R.C.No.97 of 2001 by the Additional Rent Controller – cum – XVIII Junior Civil Judge, Secunderabad, (‘the Controller’, for brevity) was set aside. 2. For the sake of convenience, the parties will be referred to as they were arrayed before the Controller. 3. Respondents 1 and 2 herein, who are the landlords, filed a petition under Section 10 (1) (ii) of The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (‘the Act’, for brevity) before the Controller seeking eviction of the petitioners herein from the petition schedule premises. Their specific case is as follows:- 4. Petitioners 1 and 2 and respondents 2 to 9 are the joint owners of premises bearing No.2-1-86, Tobacco Bazar, Secunderabad (petition schedule premises), being inherited from their forefathers. Petitioners 1 and 2 are having 1/4th share in the petition schedule premises. Since respondents 2 to 9 were not willing to join in the eviction petition, they were made as respondents. The first respondent is the tenant of the petition schedule premises. He was initially inducted as tenant on a monthly rent of Rs.175/-, exclusive of electricity charges. He gradually became a habitual defaulter and failed to pay rents for the last ten years taking undue advantage of the litigation between the petitioners 1 and 2 and respondents 2 to 9. Then, the petitioners filed O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad, against respondents 2 to 9 for partition and separate possession of their 1/4th share in the suit schedule property therein, including the petition schedule premises herein. The said suit was decreed declaring that the petitioners are entitled for 1/4th share in the suit schedule property including the petition schedule premises. Subsequently, in the year 2005, the petitioners have purchased the shares of other sharers also and became absolute owners of the whole suit schedule property, which fact is not in dispute. 5. Then the petitioners got issued a legal notice asking the respondents to furnish the particulars of payment of rents, but it was returned as the first respondent refused to receive the said legal notice. Alleging that the first respondent failed to pay rents from the month of April, 1983, upto the date of filing of the petition and thus deliberately committed wilful default, the petitioner sought eviction of the first respondent from the petition schedule premises. 6. The first respondent resisted the petition and contended that he was paying rents to the receiver appointed by the Court in O.S.No.352 of 1982 on the file of the III Senior Civil Judge, City Civil Courts, Secunderabad, and that after the death of the said receiver, he addressed a letter to the petitioners and other co-owners to specify bank account for the purpose of depositing the rents and that the petitioners and other sharers failed to obtain orders from the Court after the death of the said receiver and failed to furnish the bank account and that after issuance of notice, he opened account No.1724/50 in Jammu and Kashmir Bank, M.J.Market Branch, Hyderabad which account number was later changed as S.B. Account No.243 and that in the year 1996, the Municipal Corporation of Hyderabad had sent demand notice for payment of property tax and that he was issuing cheques in the name of the Municipal Corporation from the amount already deposited by him in the said account and that balance amount is still in the deposit of the same account and that he informed the same to the petitioners. It is also his case that he made correspondence with the wife of the receiver appointed in O.S.No.352 of 1982 by the III Senior Civil Judge, City Civil Courts, Secunderabad, and that she in turn addressed a letter to him stating that nobody was appointed as receiver after the death of her husband and further requested him to deposit the rent in any bank or keep the amount with himself. Thus, the specific case of the first respondent before the trial Court is that he never refused to pay the rents nor committed any wilful default in payment of rents. 7. Basing on the averments made therein, the trial Court framed the following issues for adjudication:- i) Whether the first respondent has committed default in payment of rents? If so, whether it is wilful or deliberate? ii) To what relief. 8. On behalf of the petitioners, the second petitioner – Dr.Pradeep R Patalay was examined as P.W.1 and Exs.P.1 to P.3 were marked. On behalf of the respondents, one Shiv Charan was examined as R.W.1 and Exs.R.1 to R.31 were marked. 9. The trial Court, holding that the first respondent was acting as per the directions of the co- owners and, therefore, he had not committed any default in payment of rent, dismissed the petition. Aggrieved by the same, the petitioners before the trial Court preferred an appeal before the lower appellate Court. The lower appellate Court, having considered the entire evidence on record and holding that the first respondent ought to have adopted the procedure prescribed under Section 9(3) of the Act and that deposit of rent in savings bank account of the tenant and payment of property tax without obtaining written permission of the landlords and other co-owners certainly amounts to wilful default and that Ex.R.18 – reply notice cannot be relied upon and that the facts and circumstances show that the first respondent failed to pay rents and thus committed default, allowed the appeal setting aside the order of the trial Court and directed the first respondent/tenant to vacate and deliver the vacant possession of the petition schedule premises to the petitioner within a period of two months from the date of the order. Aggrieved by the same, the first respondent/tenant preferred this revision. 10. Sri Sharad Sanghi, learned counsel for the petitioner/tenant, submitted that admittedly, a civil suit was pending between the co-owners and a receiver was appointed in the said suit and that the tenant was regularly paying the rent to the receiver till the death of the said receiver and that after the death of receiver, rents were paid to his wife and when she refused to receive the rents, a legal notice was issued to her and that she informed the tenant to deposit the rents in any bank account or to the credit of account in suit No. O.S.No.352 of 1982, on the file of the III Senior Civil Judge, City Civil Courts, Secunderabad, or to keep the amount with the tenant himself till the Court appoints another receiver and, accordingly, the tenant himself had opened a bank account and was regularly paying the rents. His main submission is that issuing of notice to the fifth respondent and to the wife of the receiver under Ex.R.17 and acting on the reply sent by the wife of the receiver under Ex.R.18 shows that there was no default by the tenant in payment of rents. It is further argued that after the death of the receiver so appointed, no other receiver was appointed in the said suit and that the tenant is not a party to the partition suit and, therefore, he could not have deposited the amounts to the credit of account in O.S.No.352 of 1982 on the file of the III Senior Civil Judge, City Civil Courts, Secunderabad. It is also his submission that after the dismissal of suit, when the tenant received notice from the present landlords, he filed a petition under Section 11 of the Act and as per the directions of the Court, he started depositing the rents before the Court. In support of his contentions, learned counsel had relied upon judgments in case between Neki S/o. Bakhatawar Vs. Satnarain and others[1], Md.Abdul Razack Vs. Saleemunnisa Sahaba[2] and Kalisetti Venkata Ramana Vs. Kolla Eswara Prasad[3]. 11. Per contra, learned counsel for the first respondent herein/petitioners before the Controller (hereinafter referred to as ‘Landlords’) submitted that admittedly, after the death of the receiver, the tenant did not take any steps to deposit the rents into the Court and that even as per the recitals of Ex.R.18 – Reply notice, the fifth respondent herein seems to have informed the tenant to deposit the rents into the account of O.S.No.352 of 1982 on the file of the III Senior Civil Judge, City Civil Courts, Secunderabad, and admittedly, the tenant did not take any steps to deposit the rents following the procedure prescribed under the Act. It is also his submission that admittedly, no petition seeking a direction from the Controller to deposit the rents was filed and that the tenant himself retained the rents and mere depositing the rents into his own savings account does not amount to paying of rents. It is further submitted that respondents 2 to 9 did not contest the eviction petition and they have no objection for evicting the tenant. It is further submitted that the wife of the receiver has nothing to do with the petition schedule premises and that addressing a letter to her shows the mala fide intention of the first respondent/tenant. It is also his submission that there are suspicious circumstances and no evidence was let in to prove the genuineness of Ex.R.18 – Reply notice and mere filing of Ex.R.18 – Reply notice into the Court is not sufficient to prove the case. 12. Learned counsel for the tenant finally submitted that initially, the case was pending before the Chief Judge, City Small Causes Court, Hyderabad, and subsequently, the same was transferred to the lower appellate Court and no notice with regard to the said transfer was given either to the parties or to their respective counsels. 13. In reply to this point, learned counsel for the Landlords submitted that the tenant has knowledge about the transfer of case to the lower appellate Court and that the usual practice is to put the notice of such transfer in the notice board of the Court to draw the attention of the advocates and the parties about the transfer of the case and that both the Courts are situated in the same building and that there is nothing on record to show that the tenant and his counsel had no knowledge about the transfer of the case to the lower appellate Court. It is also his submission that several opportunities were given to the tenant and even costs were imposed by the Court and as there was no representation on behalf of the tenant, the arguments were heard and the case was disposed of on merits by the lower appellate Court. 14. Heard both the learned counsel. 15. Having considered the above rival contentions, the only point that arises for consideration in this revision is whether the tenant has committed default in payment of rents. 16. Admittedly, the Landlords, i.e., petitioner 1 and 2 and respondents 2 to 9 before the Controller are the joint owners of the petition schedule premises and as on the date of filing of petition, the petitioners were having 1/4th share in the petition schedule premises. Admittedly, respondents 3 to 8 were set ex parte by the lower appellate Court and the petition was dismissed against the second and the ninth respondent for non-prosecution. There is nothing on record to show that the other joint owners opposed the petition filed by the petitioners. Admittedly, the Landlords filed suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad, against respondents 2 to 9 for partition and one Mr.Srinivas Rao Patalay was appointed as receiver in the said suit. It is also not in dispute that the tenant paid the rents to the said receiver till the death of the receiver. It is also not in dispute that the receiver died on 15.01.1987. Learned counsel for the tenant mainly relied on Ex.R.17 – Legal notice dated 09.11.1987 issued by the tenant to the wife of the receiver appointed in O.S.No.352 of 1982 by the III Senior Civil Judge, City Civil Courts, Secunderabad and Ajit Patalay – the fifth respondent herein. In the said notice, the tenant stated that after the demise of said Srinivas Rao Patalay – receiver, the tenant tendered rent to his wife and Ajit Patalay, but they avoided to receive the same and, therefore, he started remitting the rents by money order and that the said money orders were received by the wife of Srinivas Rao Patalay – receiver, and that subsequently, they were purposefully avoiding to receive the rents and, therefore, they were requested to intimate the bank account number and the name of the bank to enable the tenant to deposit the rents. 17. It is also the case of the tenant that the he had received the letter from the wife of Srinivas Rao Patalay – receiver requesting him to deposit the rents in any bank account or to the credit of O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad, or to keep the amount with himself till the Court appoints another receiver. Admittedly, the tenant deposited the rents by opening a separate bank account in his name and subsequently, transferred the same to his savings bank account. Then a legal notice under Ex.R.19 was issued on behalf of the Landlords, i.e., the petitioners herein to the tenant stating that no one is collecting the rents and in view of the pendency of the suit, the tenant was directed to deposit the rents from January, 1987, to the account of the suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad. To this notice, tenant had sent a reply stating that after the death of said Srinivas Rao Patalay – receiver, he was unable to deposit the rents to the credit of suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad, as he is not a party to the said suit and that the Landlords ought to have approached the Controller seeking a direction to him to deposit the rents to the credit of suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad. Thus, it is very clear that the tenant has not paid the rents, at least from the date of Ex.R.17, i.e., from November, 1987 onwards. What is to be done when there is a dispute between the joint owners of a property which is leased out to a tenant? 18. Section 8 of the Act is as follows:- 8. Right of tenant paying rent or advance to receipt:- (1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent. (2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. Provided that such bank shall be one situated in the city, town or village in which the buildings is situated or if there is no such bank in such city, town or village, within three miles of the limits thereof. Explanation:- It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub- section. (3) If the landlord specified a bank aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in at any rent which may subsequently become due in respect of the building. (4) If the landlord does not specify a bank as aforesaid the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of sub-section (2). (5) If the landlord refuses to receive the rent remitted by the money order under sub- section (4), the tenant may deposit the rent before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf. 19. Section 9 of the Act is as follows:- 9. Right of tenant to deposit rent in certain cases:- (1) Where the address of the landlord or his authorised agent is not known to the tenant, he may deposit the rent lawfully payable to the landlord in respect of the building, before such authority and in such manner as may be prescribed, and continue t deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the address of the landlord or his authorised agent becomes known to the tenant. (2) The amount deposited under sub-section (1) may subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller to be entitled to the amount on application made by such person to the Controller in that behalf. (3) Where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building the tenant may deposit such rent before such authority and in such manner as may be prescribed and shall report to the Controller the circumstances under which such deposit was made by him and may continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the doubt is removed or the dispute is settled by the decision of a competent Court or by as settlement between the parties or until the Controller makes an order under clause (b) of Sub-section (4) as the case may be. (4) (a) The Controller to whom a report is made under sub-section (3) shall, if satisfied that a bonafide doubt or dispute exists in the matter, direct that, pending removal of the doubt or settlement of the dispute as aforesaid, the deposit be held by the authority concerned. (4) (b) If the Controller is not so satisfied, he shall forth-with order payment of the amount deposited to the landlord. (5) Where the Controller passes an order under clause (a) of sub-section (4) any amount or amounts deposited under sub- section (3) may be withdrawn only by the person who is declared by a competent Court to be entitled thereto, or in case the doubt or dispute is removed by a settlement between the parties, only by the person who is held by the Controller to be entitled to the amount or amounts in accordance with such settlement. 20. In the instant case, according to the tenant, when the wife of Srinivas Rao Patalay – receiver refused to receive the rents, he issued notice under Ex.R.17. Admittedly, the said notice was not issued to the other joint owners, i.e., petitioners 1 and 2 and respondents 2 to 9. Even Ex.R.18 – reply notice sent by the fifth respondent to the tenant shows that the first respondent/tenant was requested to deposit the rents to the credit of account of suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad. Admittedly, the rents were not deposited to the account of suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad, on the ground that the tenant was not a party to the said suit. What is to be done when the landlord does not specify the bank account for deposit of rents as envisaged under sub-section 3 of Section 8 of the Act, is made clear under Sub-section 5 of Section 8 of the Act. Sub-section 5 of Section 8 of the Act reads that “the tenant may deposit the rent before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner”. In the instant case, it has to be seen that the Landlords, i.e., the petitioners had also issued a notice to the tenant under Ex.R.19 wherein the petitioners had specifically mentioned that their clients have got 1/4th share in the rents and that a civil suit is pending between them and, therefore, the rents may be deposited to the account of suit in O.S.No.352 of 1982 before the III Senior Civil Judge, City Civil Courts, Secunderabad. When there is a bona fide dispute, the tenant ought to have followed the procedure prescribed under sub-section 3 of Section 9 of the Act, as mentioned supra. 21. A reading of entire material on record makes it clear that the tenant had knowledge that a partition suit was pending between the petitioners 1 and 2 and respondents 2 to 9 and it is clear that the fifth respondent alone was not entitled to receive the rents on behalf of other joint owners of the property. Merely because a partition is not affected, it does not mean that the tenant can avoid payment of rents and deposit the same in his own account in the bank. The tenant ought to have followed the procedure prescribed under Section 9 of the Act. When specific procedure for deposit of rent has been prescribed in the Act when there is dispute between the co-owners, depositing the rents in his own and separate bank account by the tenant certainly amounts to wilful default. 22. Admittedly, the tenant had field a petition under Section 11 of the Act in the year 2001, but that will not cure the defect of non-payment of rent from the year 1987 onwards. Thus, it is clear that the tenant had committed wilful default by not paying the rents to the landlords from the year 1987 till the date of deposit of the rents before the trial Court. 23. The judgments relied upon by the learned counsel for the tenant can be distinguished on facts. In Neki S/o. Bakhatawar’s case (1 supra), on facts, it was found that the tenant never committed default in payment of share of crop and that he was paying rent to the GPA of the landlord. I n Md.Abdul Razack’s case (2 supra), the main point decided was that when a person was receiving the rent, he was entitled to file petition for eviction and even if the other owner is not joined as party to the petition, that will not take away his right to file a petition for eviction. I n Kalisetti Venkata Ramana’s case (3 supra), it was held that when there is a specific objection by the co-owner not to pay the rents to the