IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE 11th DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.1799 of 2006 BETWEEN: Munshri Abdul Azeez … APPELLANT(S) And Annavarapu Kasi Viswanadham … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.1799 of 2006 ORDER: This is a landlord’s revision under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 (for short Act). He brought the eviction petition i.e. R.C.C.No.37 of 1998 for eviction of the respondent/tenant on two grounds namely wilful default in payment of rent falling under Section 10(2)(i) and acts of waste falling under Section 10(2)(iii) of the Act. 2. The learned Rent Controller-cum-Principal Junior Civil Judge, Kakinada, after a contest by his order dated 28.03.2005 rejected the second ground and upheld the first ground i.e. wilful default in payment of rent and ordered eviction of the tenant. Against that order of the Rent Controller, the tenant filed appeal i.e. R.C.A.No.2 of 2005 before the appellate authority i.e. Principal Senior Civil Judge, Kakinada. The appellate authority by its order dated 23.08.2005 upheld the case of the tenant that there was no wilful default in payment of rent and in that view of the matter it allowed the appeal and dismissed the eviction petition. Questioning that order of the appellate authority the landlord has come up with this revision. 3. The learned counsel for the landlord in this revision stated across the Bar that the revision is confined only to the ground of wilful default in payment of rent and hence the revision is being disposed of on that ground. The petition schedule premises is a building in Kakinada and was being used by the tenant for non- residential purpose. The monthly agreed rent was Rs.900/-. 4. Thus the only point that arises for determination in this revision is whether there is wilful default on the part of the tenant in paying the rents for the relevant period as claimed by the landlord. The details of the oral and documentary evidence let in by both sides on the point are mentioned in the appendix of evidence given at the foot of the Rent Controller’s judgment. 5. The pleadings and the evidence let in by both sides would no doubt show that as contended by the tenant’s counsel the landlord was in the habit of receiving or accepting the rents periodically without insisting upon payment of rent every month and that the tenant also paid the house tax on the petition schedule premises to the municipality for a certain period and adjusted the same against rent payable and this aspect will be mentioned infra. 6. It should now be noted that earlier i.e. prior to the filing of the eviction petition the tenant has sent a sum of Rs.21,600/- by his Ex.A.1 letter dated 02.11.1993 for two years i.e. from April 1992 to March 1994 @ Rs.900/- per month and this was accepted. The controversy or the dispute between the parties begins from this point. It should be noted that the landlord by the original of his Ex.A.3 notice dated 30.08.1995 sent to the tenant acknowledged the receipt of the above rent from 1st April 1992 to 31st March 1994, but complained that thereafter he (tenant) committed default in payment of rents and allowed the arrears of rent to accumulate to Rs.15,300/- for the period from 1st April 1994 to August 1995 in spite of repeated demands and called upon the tenant to send the said rent amount immediately. 7. It should also be noted here that in Ex.A.3 notice the landlord demanded the tenant to pay the rent every month from September 1995 onwards regularly before the 10th of the succeeding month and of-course he instructed the tenant to pay the taxes to the municipality on his behalf. After this Ex.A.3 notice the tenant by his Ex.A.2 letter dated 15.11.1995 again sent a demand draft for Rs.21,600/- towards rent from April 1994 to March 1996 i.e. covering the future rent also from September 1995 to March 1996. It is not known what transpired between them subsequently. 8. Thereafter the landlord filed the eviction petition R.C.C.No.37 of 1998 on 20.08.1998. The record shows that it was only thereafter the tenant has sent Ex.A.5 notice dated 08.06.1999 to the landlord’s lawyer sending the balance rents from April 1996 to March 1999 after deducting the house tax paid. It should be noted that in the statement enclosed to Ex.A.5 notice the tenant has given the particulars of house tax paid from September 1992 to March 1999 at various half-yearly rates aggregating to Rs.19,338/-. This statement further reads that after deducting this amount of Rs.19,338/- from the total rent of Rs.32,400/- due from April 1996 to March 1999 the tenant has shown the rent due as Rs.13,061-70 ps upto March 1999 and sent that amount and also another amount of Rs.1800/- i.e. perhaps towards rent for April and May 1999 as the said notice is dated 08.06.1999. 9. The landlord’s plea in the eviction petition is that after Ex.A.3 notice calling upon the tenant to pay the rents regularly he did not pay the same and in the eviction petition he pleaded that the tenant committed default from April 1996. It is clear that having received the rent upto March 1996 the landlord claimed the rent only from April 1996 though in the eviction petition he also pleaded that the tenant committed default from April 1994. 10. After considering the evidence of landlord i.e. P.W.1 and the evidence of tenant i.e. R.W.1 and various documents filed by them the Rent Controller concluded that the above attitude of the tenant in sending the rents in the manner which he did amounts to committing wilful default on his part whereas the appellate authority held that it does not. The appellate authority appears to have been more carried away by the manner in which the landlord was accepting the rents prior to Ex.A.3 notice and further as tenant paid all rents due subsequent to the filing of the eviction petition and also paid taxes. 11. It may be noted that so far as payment of taxes by the tenant is concerned, it is true that a tenant can pay the taxes and adjust the said amount against the rents payable by him to the landlord by virtue of Section 69 of the Contract Act and there cannot be any doubt on this position. The question is to what extent the said provision would help the tenant in this case especially after Ex.A.3 notice and whether the tenant’s plea that the landlord was accepting the rents periodically as per his convenience earlier and the benefit of that plea would be available to him after Ex.A.3 notice. The result of this CRP turns on the above questions and both counsel also argued on the same. 12. The learned counsel for the landlord argued that whatever may be the position earlier prior to Ex.A.3 notice at least after Ex.A.3 notice the tenant was under an obligation to pay the rents periodically at least by the 10th day of the succeeding month and since he did not pay the rent from April 1996 till after the filing of the eviction petition the tenant must be held to have committed wilful default. He also argued that the earlier payment of rent by the tenant upto March 1996 through his Ex.A.2 letter dated 15.11.1995 and the subsequent payment of rents after the filing of the eviction petition through Ex.A.5 cannot exonerate the tenant from the charge of wilful default. He pointed out that the appellate authority ignored the above circumstances and reversed the Rent Controller’s order without any basis and consequently this CRP should be allowed. On the other hand the learned counsel for the tenant supported the order of the appellate authority and argued that having regard to the taxes paid by the tenant and the earlier attitude of the landlord in accepting the rent periodically and further his acceptance of rent upto date after filing the eviction petition are enough to sustain the impugned order. 13. It may be noted that this Court normally in a revision would not interfere on a finding of fact unless it is against evidence and patently wrong. Keeping in view this principle the point is now proposed to be taken up. The circumstances and the contentions of the counsel on either side on the point have already been set out supra. It may be noted that the evidence on record prior to Ex.A.3 notice of the landlord no doubt shows that the landlord was accepting the rents periodically and he was not insisting upon payment of rent for every month. It may then be noted that according to Section 10(2)(i) of the Act the tenant has to pay the rent within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of such an agreement the tenant should pay the rent by the last day of the succeeding month. In the present case, the tenancy is a month to month tenancy and even otherwise there is no agreement oral or written between the parties as to within what time the rent should be paid. 14. Even ignoring the landlord’s stipulation that rent should be paid before the 10th day of every succeeding month, going by Section 10(2)(i) the tenant ought to pay rent for every month by the last day of the succeeding month and if he violates this statutory stipulation then he would be guilty of default. In my opinion once the landlord has issued Ex.A.3 notice demanding payment of rent for every month by the 10th day of the succeeding month it must be held that the landlord has given up his previous practice and has cautioned the tenant to be careful in future and pay the rent every month as demanded by him. At best the tenant would have the time to pay the rent for every month upto the last day of the succeeding month and in a case where a notice like Ex.A.3 notice has been given by the landlord the tenant cannot ignore it and rely upon the previous practice of the landlord. This being the position the following circumstances would show that the tenant can be said to have committed wilful default in this case. 15. It may be noted that after Ex.A.3 notice dated 30.08.1995, the tenant did not send the rent immediately for the months of April 1994 to August 1995 and also September and October 1995, but for reasons best known to him he sent Rs.21,600/- towards rent from April 1994 to March 1996 i.e. future rent also from October 1995 to March 1996 through his Ex.A.2 letter dated 15.11.1995. 16. It may then be noted that after Ex.A.2 letter the tenant did not send the rents every month by the last day of the succeeding month from April 1996 till the date of filing the eviction petition which is 20.08.1998. It was later on through Ex.A.5 notice dated 08.06.1999 the tenant has sent the rents from April 1996 to June 1999 after deducting the taxes paid on the building in question from September 1992 to March 1999 calculating the tax at Rs.19,338/-. 17. One defence which was raised was that the landlord himself through Ex.A.3 notice called upon the tenant to pay the taxes and as the tax amounts for certain half-yearly periods were more than a month’s rent the tenant cannot be faulted. There is no force in this contention. It may be noted that in this case the tenant did not pay the taxes regularly as and when they were due. The statement enclosed to Ex.A.5 shows that he paid taxes from September 1992 to March 1999 just some time before sending Ex.A.5 notice. This would also be clear from the fact that earlier the tenant has sent rents from April 1992 to March 1994 through his Ex.A.1 letter without deducting the taxes due from September 1992. 18. It may be noted that normally when the property tax on a building is high and when the tenant is called upon or forced to pay the said taxes which may be two or three times more or some times even five to six times more than the rent payable every month one can understand if the tenant pays that tax and adjusts the rent equivalent to the tax for the relevant period and subsequently sends the balance rent after the adjustment. In such a case the tenant may not be guilty of default. In this case the half-yearly tax ending for September 1992, March 1993 and September 1993 was Rs.869-10 ps each and thereafter for the half-years ending March 1994 to March 1999 the half-yearly tax was Rs.1,521/-. 19. In this case the taxes are also not high. The monthly rent is Rs.900/- and for half-year it comes to Rs.5,400/-. For the half- years ending till September 1993, the tax was Rs.869-10 ps for each half-year. This may roughly work out to one-sixth of the rent for half year. Then for each half-year commencing from March 1994 the tax is Rs.1,521/-. This would roughly work out to one- third of the rent for half year for that period. In such a case the tenant should pay the rent regularly for each month and whenever he pays tax at the end of the half year he can adjust the rent towards the tax for the month in which the half year ends or even the succeeding month if one-month’s rent is insufficient for complete adjustment of the tax. On the pretext of paying the taxes it is not open for the tenant to say in a case like this that he can withhold the payment of rents every month when the half-yearly tax payable works out to only one-sixth or one-third of the rent for the half year. In this connection the landlord’s request in Ex.A.3 notice to the tenant to pay the taxes cannot also help the tenant to postpone payment of rents on the pretext of paying the taxes in the circumstances of this case. The learned counsel for the tenant could not bring to my notice any decision or legal provision to show that the above view can be said to be incorrect. The contention of the landlord’s counsel on this aspect should therefore be accepted. 20. It may be noted that added to the above minus point in the tenant’s case, the tenant did not explain as to why he failed to pay the rent from April 1996 onwards regularly upto July 1998 till the date of the filing of the eviction petition i.e. 20.08.1998 and he did not also explain under what circumstances he paid the rent through Ex.A.5 notice dated 08.06.1999 i.e. ten months after the filing of the eviction petition. He of-course paid rent upto March 1996 i.e. future rent from September 1995 earlier, but that will not help the tenant as he did not comply with the landlord’s demand sent through Ex.A.3. He did not prove any extenuating circumstances also as contemplated under the proviso to Section 10(2) of the Act regarding default. It is now well settled that mere payment of all rents due upto the date of eviction petition after the filing of the eviction petition cannot help the tenant as laid down in K.AFSARUNNISA BEGUM vs. K. ANASUYA[1] which is relied upon by the learned counsel for the landlord. Thus the above circumstances show that the tenant has committed wilful default in payment of rents as pleaded by the landlord. 21. The appellate authority did not consider the above circumstances and relied upon certain case law which is not relevant to the controversy here. It relied upon GUNDU PREEMSAGAR vs. NAGABANDI JAYASHANKAR[2], DAKAYA ALIAS DAKAIAH vs ANJANI[3] and N.RAJ KUMAR vs. SHARADA[4] cited on behalf of the landlord in allowing the appeal. The first two cases were cases where the landlord has received the entire arrears of rent before the filing of the eviction petition. That is not the case here. It may be noted that the rents were due in the present case from April 1996 and the eviction petition was filed on 20.08.1998 and the tenant has sent the rents for April 1996 to March 1999 through Ex.A.5 notice dated 05.06.1999 after the filing of the eviction petition i.e. previous arrears upto the date of the eviction petition were also sent subsequent to the filing of the eviction petition. The endorsement on Ex.A.5 notice made by the lawyer of the landlord would show that he received the said letter and the drafts without prejudice to the rights and calculations of his client i.e. the landlord. Thus it cannot be said that the landlord accepted the said rents without protest. This apart the tenant has paid the rents even up to the date of the filing of the eviction petition only after the filing of the eviction petition. This makes all the difference and the above decisions do not help the tenant. Hence the said decisions do not support the tenant’s plea. The third decision is a case which pertains to non-payment of rents for the period during the pendency of the eviction petition. The proposition laid down in this case is that where the landlord keeps quiet without filing a petition under Section 11 of the Act demanding possession in such a case he cannot seek eviction in the eviction petition. This decision is also not helpful to the tenant for the simple reason that he cleared the rent from April 1996 upto the date of the eviction petition only after the filing of the eviction petition and therefore by the date of the eviction petition the tenant can be held to have committed default in payment of rents upto that date. As the tenant did not come forward with any acceptable explanation for not paying the rents upto the date of eviction petition he must be held to have committed wilful default in payment of rent upto that date. 22. Hence the said three decisions relied upon by the appellate authority do not help the tenant. On the other hand the decision given in K.AFSARUNNISA BEGUM’s case (1 supra) aptly supports the landlord’s case as contended by his counsel. Hence, the appellate authority’s decision for the aforesaid reasons can be said to be an incorrect one and contrary to the evidence and the legal position and calls for interference. 23. The learned counsel for the tenant pointed out that the landlord is an advocate at Hyderabad and he was also an Ex-Minister and he has no interest in occupying the petition schedule property and that is why he was earlier accepting the rents periodically as per his own convenience and these circumstances should be taken into account and the tenant’s plea must be upheld. The landlord’s occupation and residence at Hyderabad and his need for the building are not relevant here as eviction is sought on the ground of wilful default in payment of rent which is upheld now. It was then represented on behalf of the tenant that he also paid taxes subsequent to the filing of the eviction petition but that also is not helpful to the tenant for the reasons aforesaid. 24. The point is accordingly decided in favour of the landlord and this CRP is allowed setting aside the order of the appellate authority and restoring that of the Rent Controller. No costs. _______________________ N. RAVI SHANKAR, J. 11th February 2011 CVRK [1] 2006 (4) ALD 495 [2] 2002 (1) ALD 554 [3] AIR 1996 SC 383 [4] AIR 2002 AP 203