*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.252 of 2011 %18.07.2011 #Sri Chennakesava Swamy Temple. ..Appellant. Vs. $Ravi Veeraiah Chowdary. ..Respondent. !Counsel for the appellant : Sri V.T.M.Prasad ^Counsel for the Respondent : Sri Naga Praveen Vankayalapati <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.252 of 2011 JUDGMENT: The appellant – Devasthanam owns agricultural land at Kumakalamarru Village of Parchuru Mandal, Prakasam District. The leasehold rights of the land are auctioned from time to time for augmenting its resources. The respondent emerged as the successful bidder for a period of three years from 2006-09, at a sum of Rs.94,500/- per year. He deposited the amount for the year 2006-07 (for short ‘first year’) and raised the paddy crop. Thereafter, he raised the crop for the subsequent year 2007-08 (for short ‘second year’) without depositing the amount. On the ground that he committed default in payment of rent, the leasehold rights for the year 2008-09, were granted in favour of another person. The appellant filed O.S.No.9 of 2008 in the Court of Senior Civil Judge, Parchur, for recovery of the rent, for the second year. It was pleaded that though the respondent raised the crop, on the land, he did not pay the rent, that was offered by him, in the auction. The respondent filed a written statement opposing the suit. He pleaded that though the rent for the first year was paid, the crop was damaged, due to cyclone and that the Government issued G.O.Rt.No.2711 dated 22.12.2006, exempting the farmers from payment of rent. He pleaded that he is entitled to adjust the rent paid by him in the first year, for the second crop year. The trial Court decreed the suit through judgment dated 20.07.2009. The respondent filed A.S.No.154 of 2009 in the Court of IV Additional District and Sessions Judge, Ongole. The appeal was allowed through judgment, dated 30.11.2010. Hence, this Second Appeal. Sri V.T.M.Prasad, learned counsel for the appellant, submits that the dispute as to payment of rent was in relation to the second year and unless there was a declaration by a Court of law, or a counter claim made by the respondent, there was no justification for the lower Appellate Court in directing adjustment of the rent paid for the first year, for the second crop year. He contends that the facility under G.O.Rt.No.2711 dated 22.12.2006, is only for those who did not pay the rent for the first year, and there was not even a mention that the amount already paid for that crop season shall be refunded. He submits that the distinction between the waiver on the one hand and adjustment, or refund, on the other, needs to be mentioned. Sri Naga Praveen Vankayalapati, learned counsel for the respondent, on the other hand, submits that the mere fact that the respondent paid the lease amount for the first year, which is waived by the Government, did not entitle the respondent to retain that amount. He submits that the lower Appellate Court has taken correct view, by directing its adjustment for the second year. There is no dispute that the respondent was the lessee, in respect of the land owned by the appellant, for three years on the basis of auction. The lease deed stipulated that the rent shall be paid at the commencement of the season. Accordingly, the respondent paid the lease amount of Rs.94,500/- for the first year and raised the crop. He raised the crop for the second year, without paying the rent. In the suit filed by the appellant for recovery of that amount, the trial Court framed the following issues: i) “Whether the defendant used to pay rent in advance? ii) Whether the defendant obtained any remission in the lease amount? iii) Whether the plaintiff is entitled to suit amount as prayed for?” On behalf of the appellant, PW.1 was examined and Exs.A.1 to A.4 were filed. On behalf of the respondent, DWs.1 to 3 were examined and Exs.B.1 and B.2 were filed. Attested Xerox copy of G.O.Rt.No.2711 dated 22.12.2006 was marked as Ex.X.1. Other related documents were taken on record as Exs.X.2 to X.4. The suit was decreed as prayed for. The respondent filed A.S.No.154 of 2009. The lower Appellate Court framed the following points for its consideration: i) “Whether the defendant is liable to pay lease amount for the year 2006-07? ii) Whether the judgment and decree of the Senior Civil Judge, Purchur is liable to be set aside?” The appeal was allowed and consequently, the suit was dismissed. In view of the arguments advanced by the learned counsel for the parties, this Court is of the view that the following questions of law arise for consideration in this second appeal: i) “Whether a G.O. issued by the Government providing for waiver would entail in refund of the amount already paid or adjustment thereof towards the rent for a different season? ii) Whether the plea of adjustment of the rent for the previous year can be raised by a defendant without taking the plea of set off: iii) Whether it was not necessary for the respondent in this appeal, to seek a declaration as to his entitlement of the benefit under Ex.X.1, independently?” As required under the conditions of lease, the respondent deposited a sum of Rs.94,500/- as rent for the first year and raised the crop. He raised the crop in the second year of his lease without depositing the lease amount. When a demand was made, he took shelter under an order issued by the Government, marked as Ex.X.1. It is no doubt true that the Government issued Ex.X.1 providing for waiver of the payment of rent, by referring to the floods, that have occurred in the months of October - November 2006. The relevant portion of the G.O. reads as under: “Government after careful examination hereby, order to waive off “Mukhta for the Endowment land leased to lessees for the current year in view of the unprecedented and extensive damages occurred to the crops due to recent floods. This relief is granted as a one time measure only to the lessees of lands belonging to Endowment Charitable/Institutions in the affected areas as per the notification issued by the District Collectors concerned.” The respondent did not make any representation to any authority stating that the crop raised by him in the first year was damaged, or that he did not harvest it. He did not even make any claim under Ex.X.1, during that season. He simply raised the crop for the second year, without depositing the amount. A perusal of Ex.X.1 discloses that it has just provided for waiver of the Mukhta. There is nothing in it, to suggest that in case the Mukhta is already paid, it must be refunded. It hardly needs any mention that Ex.X.1 covered the crop season 2006-07 and it has no concern whatever, with any other crop season. Unless it provides for refund of the Mukhta, which is already paid, the respondent could not have claimed refund. Obviously, for that reason, he did not make any efforts to seek refund of the amount already paid by him. Hardly any intellectual exposition is needed to understand the distinction between ‘waiver’, on the one hand, and ‘refund, or adjustment’, on the other. Waiver is a facility, which would relieve the person who is due some amount to another, from the obligation to repay it. It can be in the form of an act of the person who entitled to recover the amount, or it can be through an act of State, in exercise of its sovereign power. ‘Refund or adjustment’, on the other hand, arises, when the amount is already paid, but the recipient thereof is placed under obligation to return it or adjust the same towards any other liability, as the case may be. These two aspects are covered by totally different legal regimes. While ‘waiver’ is a disability placed upon a person who is otherwise entitled to recover the amount; ‘refund, or adjustment’ is the right conferred upon an individual, who parted with the amount, to claim the benefit thereof, in one form or the other. Therefore, even assuming that the respondent was entitled for waiver under Ex.X.1, he did not have the right to adjust the amount paid by him towards the rent payable for the next crop season, much less, to seek refund thereof. Assuming that the respondent was otherwise entitled to claim the refund of the amount paid by him for the first year, he could have resisted the suit filed by the appellant for recovery of the rent for the second year, only by raising the plea of set off. It is only when a set off or counter claim are pleaded, that the occasion for the corresponding entitlement could have been adjudicated. A defendant in a suit cannot simply oppose the claim for undisputed amount, by stating that he is entitled for adjustment of the amount, which was already paid by him. Therefore, this question is also answered in favour of the appellant. The respondent rested his claim or his defence upon Ex.X.1. The benefit thereunder is extendible to suit certain categories of persons, that too for a particular season. Those questions were required to be decided by competent authority, or a Court of law. Since the benefit was claimed by the respondent, he was under obligation to seek such a declaration. Even if not through an independent suit, he could have sought for a declaration by way of counter claim, on the basis of Ex.X.1. Here also, he did not chose to pursue the proper remedy. Unless his entitlement under Ex.X.1 was decided by a Court of law and unless Ex.X.1 provided for refund or adjustment, there was no way that the respondent could have opposed the suit. The lower Appellate Court proceeded on the assumption that Ex.X.1 provided for remission, though what was extended by it was the relief of waiver. It directed that the amount paid for the first year be refunded or adjusted. The whole approach is perverse and contrary to record. The Second Appeal is accordingly allowed and the decree and judgment passed by the lower Appellate Court are set aside. As a result, the decree passed by the trial Court would stand. The respondent is granted the facility of paying the decretal amount in four monthly instalments, payable on or before 15th of every month, commencing from September 2011. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 18.07.2011 L.R. copy to be marked. Note: Issue c.c. in one week. (B/o) GJ