IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE NINTH (9TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2010 of 2006 Between: Syed Habeebuddin … Petitioner And: Bajarang Pershad … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2010 of 2006 ORDER: This revision is directed against the order dated 08.03.2006 in RA No.177 of 2003 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad, wherein, the said appeal filed by the respondents herein was allowed directing eviction of the petitioner herein on the ground that the petitioner/tenant committed default in payment of rent, and directing him to vacate and deliver vacant possession of the schedule premises within two months, consequently setting aside the order dated 29.08.2002 in RC No.237 of 1998 on the file of the I Additional Rent Controller, Hyderabad, where under eviction petition was dismissed. 2. Heard both sides. Perused the record. 3. The respondents herein/landlords filed RC No.237 of 1998 against the petitioner/tenant for eviction under Section 10(2)(v) and 10(3)(A)(i)(A)(iii)(C) and 10(2)(I) of the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short ‘the Act’) from the petition schedule premises bearing D.No.21-1-47/1. According to the respondents/landlords, they purchased the petition schedule premises from Syed Abdul Hai and Zakia Begum under a registered sale deed dated 09.05.1997 and thus became the owners of the premises, which was in occupation of the petitioner/tenant on a monthly rent of Rs.100/-. The respondents got issued a notice dated 28.12.1997 demanding the tenant to pay the rents to them and also vacate the premises. The vendor also informed the same to the tenant. In spite of the notice, the petitioner/tenant did not pay the rent for the period from May 1997 till January 1998 and thus, committed willful default in payment of rent. The respondents/landlords further pleaded that the adjacent premises was purchased by their another brother along with 2nd respondent herein, which is in occupation of another tenant and the respondents required the schedule premises for personal occupation to carry on their own business after reconstruction. The respondents also contended that the petitioner/tenant secured alternative accommodation in the adjoining portion, situated to the north of the schedule premises and he also purchased another premises bearing No.21-2-47, which is big malgi and on that ground also, the tenant is liable to be evicted. 4. The petitioner herein-tenant, filed counter admitting the jural relationship with the previous owners Syed Abdul Hal and Mrs. Zakia Begum and also, quantum of rent at Rs.600/- per month, which was paid up to June 1997. According to him, thereafter, the previous owners refused to receive the rent and therefore, he remitted the same by money order, which was received up to December 1997. On 27.12.1997 previous landlords sent notice informing that they sold the property on 09.05.1997 to the respondents herein and also directed him to pay the rents to the respondents at the rate of Rs.600/- per month. The petitioner/ tenant sent a reply on 02.01.1998 denying his liability to pay the rents from May 1997, as the same was already paid to the previous owners till December 1997. Even in the month of January 1998, the petitioner/tenant remitted the rent by money order on 03.01.1998 to the previous landlords after receiving letter dated 02.01.1998 from the respondents herein. On 19.02.1998 the petitioner who issued a legal notice to the respondents, requesting them to receive the rents from February 1998, but they refused to receive the same. He again issued a notice to the respondents/landlords to furnish bank details enabling to deposit the same to the credit of their account, but they did not comply. Thereafter, the petitioner/ tenant filed petition under Section 8(5) of the Act in RC No.201 of 1998 seeking permission of the Rent Controller to deposit the rents in to the Court and by interim order dated 23.10.1998, the tenant was permitted to deposit the rents to the credit of RC No.201 of 1998 and accordingly, the tenant is crediting the rents. Thus, according to the petitioner, there is no default, much less willful default in payment of rent. He also denied the respondents’ bona fide requirement of the premises, as according to him, the respondents are in occupation of several other non-residential buildings in Hyderabad. He also denied that he secured any alternative building. 5. During enquiry before the Rent Controller, 2nd respondent herein was examined as PW.1 and Exs.P.1 to P.7 were marked. The petitioner herein was examined as RW.1 and another witness was examined as RW.2 and Exs.R.1 to R.8 were marked. The learned Rent Controller framed the following points for consideration. i) Whether the respondent committed willful default? ii) Whether the petitioners require the petition premises bona fidely? iii) Whether the respondent secured alternative accommodation? iv) To what relief? 6. On a consideration of the evidence available on record, the learned Rent Controller on point No.1 held that the respondent/tenant did not commit any willful default, as the remittance of rent for the month of January 1998 on 03.01.1998 cannot be considered as amounting to willful default. On point No.2, it was held that the landlords could not establish that the schedule premises were required by them for bona fide personal accommodation. On point No.3, the learned Rent Controller held that the petitioner/tenant has not secured any alternative accommodation. Consequently, the petition for eviction was dismissed by the learned Rent Controller. 7. Aggrieved by the same, the respondents herein preferred RA No.177 of 2003. The learned Additional Chief Judge, by impugned order, while holding that the respondents/landlords are not entitled to seek eviction on the ground of bona fide requirement and that there is no material to hold that the tenant secured alternative building and thus confirming the findings of the learned Rent Controller on those two grounds, however, held that the tenant committed willful default in payment of rents for the month of January 1998 after receiving notice of acknowledgment and therefore, rendered himself liable for eviction. Accordingly, the order of the learned Rent Controller dismissing the application was set aside and the appeal was allowed and the eviction of the petitioner/tenant was allowed granting two months time to vacate. Assailing the same, the present revision is filed by the tenant. 8. The concurrent findings of the Rent Controller and the appellate authority that the petitioner/tenant is not liable for eviction on the ground of bona fide requirement of the premises by the respondents/landlords for their personal occupation and on the ground that petitioner/tenant secured alternative accommodation have become final, as there is no challenge by the respondents/ landlords. The only question that falls for consideration in the present petition is whether the petitioner/tenant has committed willful default in payment of rent for the month of January 1998? 9. The jural relationship of landlords and tenant between the respondents and petitioner is not disputed. The quantum of rent, which was being paid at the rate of Rs.600/- per month at the relevant time is also not in dispute. According to the landlords, their vendor by letter dated 28.12.1997 informed the tenant to pay the rents to the purchasers from May 1997 but he did not pay the same. Admittedly, the schedule premises was purchased by the respondents from erstwhile owners Abdul Hai and Zakia Begum on 09.05.1997 under Ex.P.1. According to the respondents/landlords, tenant was orally informed about the purchase and also he was orally directed to pay the rents to them. The said plea of oral intimation was rightly disbelieved by the learned Rent Controller. It was only on 28.07.1997 for the first time, the respondents have intimated the petitioner about their purchase and there is no explanation as to why no such intimation was given to him earlier demanding payment of rents to them. According to the petitioner/ tenant, he paid rents till the end of December 1997. The rent for the month of May 1997 was already paid on 06.05.1997 and an amount of Rs.600/- was paid on 10.06.1997 (rent for the month of June) and obtained receipt No.236 Ex.R.23. Though the landlords disputed the signatures on Ex.R.23, the learned Rent Controller on due appreciation of the evidence on record, held that Ex.R.23 receipt is genuine. In fact, earlier landlords who passed receipt Ex.R.23 are not parties to the proceedings and they have not disputed the issuance of Ex.R.23. According to the respondents/ landlords, the period of default is from May 1997 to June 1998. The payment of rent for May 1997 was covered by Ex.R.23, which was issued in June 1997. The evidence on record establishes that the earlier landlords continued to receive rents till December 1997 and the petitioner in the absence of any intimation of the sale of the property in favour of the respondents, continued to pay the rents to the earlier landlords and they received and acknowledged the same. The learned Rent Controller and also the appellate authority have both held that the petitioner/tenant in fact paid the rents to the erstwhile landlords till December 1997 and the impugned order of the learned Additional Chief Judge recording a finding to the effect that the conduct of the tenant in payment of rent till the end of December 1997 to the erstwhile landlords shows his bona fides in payment of rents, since the title was not transferred to the present landlords till 12.12.1997 and they were not the landlords within the definition of Section 2(vi) of the Act and hence, they are not entitled to receive the rents from the tenant, as the transfer was not completed till the date of registration, which took place only in the month of December 1997. Thus, both the Courts below recorded a concurrent finding to the effect that there was no default much less willful default in payment of rents till December 1997 and payment of rents up to that period to the erstwhile landlords was a valid tender. 10. The learned Rent Controller held that payment of rent for January 1998 by money order dated 03.01.1998 did not amount to any willful default, whereas, the learned appellate authority disagreed with the said finding and held that the tenant committed willful default insofar as the rent for January 1998 is concerned. It is not disputed that on 27.12.1997, the previous landlords sent a letter to the tenant intimating him about the sale of the property to the respondents and directed him to attorn to the respondents. Thereafter, the tenant sent a reply dated 02.01.1998 wherein he stated that there were no arrears of rent till December 1997. On the same day, he also received a letter from the respondents herein, who also intimated about the purchase of the property and demanding the tenant to pay the rents to them from the date of execution of the document i.e., May 1997 onwards. The petitioner/tenant remitted the rent for January 1998 on 03.12.1998 to the erstwhile landlords under money order receipt. The learned appellate authority held that except the oral testimony of RW.1 and money order receipt Ex.R.59, there is no other evidence to prove the remittance of the rent to the erstwhile landlords by money order on 03.01.1998. It was further held that the remittance of rent to the previous landlords even after receipt of letter of attornment is not a valid payment to the original landlord. It was therefore held that insofar as January 1998 is concerned, there was no valid tender of rent to the present landlords/respondents and the same amounted to willful default. 11. No doubt, the tenant has remitted the rent for January 1998 on 03.01.1998 by money order to the previous landlords. In view of the money order receipt filed, the factum of such remittance cannot be disputed. It is to be noted that there has been a demand on the tenant to pay the rents from May 1997 onwards, though, in fact, the tenant has admittedly paid the rents till December 1997 to the previous landlords. Though the sale deed was executed in May 1997, the transaction was completed only in December 1997 when the document was registered. It was therefore essentially a matter to be decided among the vendors and the purchasers as to who should receive the rents till December 1997 and the demand made by both on the tenant to pay the rents from May 1997 as if he is in arrears is itself unreasonable. The letter of attornment was addressed on 02.1.1998 under Ex.R.34 dated 27.12.1997 by the previous landlords and on receipt of the same, the tenant by letter dated 02.01.1998, gave a reply denying that there were any arrears. Thereafter, there was no response from the previous landlords disputing the claim of the tenant and stating that there were any arrears. The tenant also gave a notice Ex.R.35 calling for the particulars of the sale transaction and the particulars of the purchasers and the same was received by the earlier landlords under acknowledgment Exs.R.36 and 37 and the respondents herein received the same under Exs.R.38 and 39 acknowledgments and immediately on the next day i.e., 03.01.1998, he remitted the rent for January 1998 to the previous landlords by money order. The conduct of the tenant in remitting the rent to the previous landlords without waiting for a reply to his notice seeking particulars of the purchasers, particularly with the back drop of a confusing demand made by both previous and present landlords, cannot be considered to be unusual nor abnormal as amounting to willful negligence or supine indifference. It is not as though the tenant persisted in remittance of the rents to the earlier landlords totally ignoring the purchase by the respondents or refusing to recognize their ownership. The petitioner/tenant got issued a registered notice dated 19.02.1998 under Ex.R.40 to the respondents calling upon them to give particulars of the bank account to enable them to deposit the rents. The respondents have not furnished the bank account particulars, though they received notice under Ex.R.41. There upon the petitioner took steps to file RC No.201 of 1998 before the Rent Controller seeking permission to deposit the rents from the month of February 1998 onwards. Ex.R.53 is the bunch of 21 challans showing remittance of the rents in to the court. The subsequent conduct of the petitioner/tenant in issuing a notice to the respondents in the month of February 1998 itself calling upon them to furnish particulars of the bank account and on their failure to furnish the same, his filing application before the Rent Controller seeking permission to deposit the rents and depositing the rents from the very next month onwards continuously would go a long way in establishing his bona fides. Simply because, the acknowledgment for remittance of the rent for January 1998 by money order on 03.01.1998 is not produced, the remittance itself cannot be disbelieved as sought to be done by the appellate authority. Further, the finding that even if there is material, it is not valid payment of rent is erroneous in the light of the circumstances under which the said remittance was made to the previous landlords and in the light of the subsequent conduct of the tenant. 12. It is well settled that mere default in payment of rent does not constitute a valid ground for eviction under Section 10(3) (iii)(b) and the landlord shall establish that there has been a willful negligence on the part of the tenant in payment of rent. Mere failure to pay the rent for one month i.e., January 1998 to the present landlords in the circumstances of the present case, especially when the same was remitted to the previous landlords in the light of conflicting claims from the respondents and previous landlords regarding arrears and waiting for particulars of the purchasers, does not amount to willful negligence or conscious violation of legal obligation to pay the rents. At any rate, the immediate subsequent conduct of the petitioner/tenant and the follow up remittance made on 03.01.1998 does not justify the conclusion that there has been willful negligence on the part of the tenant in payment of rent. The learned Rent Controller on due appreciation of the evidence, rightly held that even in respect of January 1998, there is no willful default in payment of the rent. The reversal of the said finding by the learned appellate authority is unwarranted in the totality of the circumstances of the case. 13. In the circumstances, it is held that the impugned order of the learned Additional Chief Judge, directing eviction of the petitioner/tenant on the ground that there was willful default in payment of rent for January 1998 is unsustainable and the same is accordingly set aside. Consequently, RC No.237 of 1998 stands dismissed. 14. In the result, the civil revision petition is allowed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 09.06.2011 bss