THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1100 of 2004 Date of order: 25.6.2010 Between: Sampanga Krishna Murthy …Petitioner and Duri Veera Lakshmi alias Varalakshmi (died) and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1100 of 2004 ORDER: This revision petition is filed by the tenant questioning the correctness and legality of the impugned orders of the learned Rent Controller in RCC No. 3 of 1997 dated 25.1.2001, as confirmed by the learned Rent Control Appellate Authority in RCA No. 2 of 2001, dated 11.2.2004. The parties will be referred to as ‘landlady’ and ‘tenant’. The landlady filed an eviction petition against the tenant on the ground of willful default as well as causing damage and material alterations to the schedule premises by the tenant. It is alleged in the eviction petition that the schedule premises was leased out to the tenant as a residential house under an oral tenancy at the rate of Rs.125/- per month about five years prior to filing of the eviction petition. Though the rent was payable on every 10th day of following month, the tenant was irregular and was paying the rents once in two or three months. On the date of eviction petition, the last rent paid by the tenant was in August, 1996 and he fell in arrears from September, 1996 onwards upto June, 1997. It is alleged that when the landlady went to the premises to collect the rent for the month of January, 1997, she found that the tenant had dismantled a part of the slab and as such she demanded damages of Rs.30,000/- from the tenant, apart from the arrears of rent and to vacate the schedule premises. The said demand was followed by a registered legal notice by the landlady, Ex.P1, dated 27.6.1997, which was replied by the tenant under Ex.P2, dated 4.7.1997 and thereafter the landlady filed the present eviction case. The tenant filed a counter disputing both the aforesaid grounds and alleged that the landlady was residing at Hyderabad along with her sons and she used to come to the schedule premises once in four or five months and collect the rents and then leave for Hyderabad. In other words, he set up a practice of payment of rents in lump sum and not every month. He alleged that in the month of June, 1997 the landlady did not receive the rent, though tendered and it was sent by the tenant by money order on 2.8.1997 for the month of June, 1997 which the landlady refused to receive. It is further alleged that the tenant thereafter filed RCC No. 4 of 1997 for deposit of rents. He also denied the claim of damage to the schedule premises and contended that the landlady herself with her men demolished the slab and removed the gate which was reported by the tenant to Tuni Police Station. On the basis of the above allegations, the learned Rent Controller framed the following points for consideration, (1)Whether the respondent (tenant) committed willful default in payment of rents to the petitioner (landlady), if so, he is liable to be evicted from the schedule premises? (2)Whether the respondent has committed such acts of waste that are likely to impair materially the value of utility of the building if so, he is liable to be evicted from the schedule property? (3)To what relief? Evidence on behalf of the landlady was tendered by herself as P.W.1, whereas the tenant examined himself as R.W.1 and one witness as R.W.2. The landlady marked Exs.P1 to P11, of them Exs. P1 and P2 being legal notice and reply notice and rest of exhibits being rent receipts. The tenant marked Ex.B1-rent receipt dated 5.3.1999 whereunder he claims to have paid rent for 17 months to the counsel for landlady pending the eviction petition. The learned Rent Controller found both the points in favour of the landlady and ordered eviction of the tenant. On appeal by the tenant, the lower appellate authority also concurred with the findings of the learned Rent Controller on both the said points. Hence this revision. Mr. V.V.N. Narayana Rao, learned counsel for the tenant has contended that the very finding of willful default reached by the courts below is unsustainable, inasmuch as both the courts below have relied upon the alleged default committed by the tenant pending the eviction petition. He points out the discussion in the judgments of both the courts below where the courts considered that the conduct of the tenant in not depositing the rents regularly during the pendency of the eviction petition and paying rents in lump sum to the counsel for landlady shows that he is a willful defaulter. The learned counsel relied upon a decision of a Full Bench of this Court reported in Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao and Anr. [1] to contend that the landlady has never filed any application under Section 11 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short “the Act”) pending the eviction petition and as such she cannot rely upon the subsequent default said to have been committed by the tenant pending the eviction petition. To the extent of damage and acts of waste, the learned counsel relied upon the evidence of R.W.2 to contend that he was the mason employed by the landlady herself and as per the evidence of the said witness, the landlady herself came to the schedule premises in the absence of the tenant and removed the old tiles of the roof with the help of R.W.2 on the ground that the roof was leaking and the tenant had reported the matter to Tuni Rural police station and thereafter the work had been stopped. The learned counsel, therefore, submits that in the absence of contra evidence on the part of the landlady, it is evident that she herself had damaged the roof and the tenant cannot be blamed for acts of waste. He submits that the said evidence has been ignored by both the courts while giving findings on the said ground against the tenant. Mr. Sri P. Raghuram, the learned counsel for the landlady submits that though the lower appellate authority has confirmed the finding of willful default, based on subsequent default, there is evidence on record that the default as alleged in the eviction petition is nothing, but willful default. He submits that the learned Rent Controller has taken into consideration the willful default as alleged in the eviction petition as well as the subsequent defaults and on the legal position then existing, prior to the decision of the Full Bench referred to above, the subsequent default was very much a ground which can be relied upon by the landlady. He submits that in any case when the default is admitted, the burden is on the tenant which he has failed to discharge, as no document was filed by the tenant in support of his plea that either a money order dated 2.8.1997 was sent to the landlady or that the tenant had filed any application seeking deposit of rent. To the extent of second ground, the learned counsel states that an advocate commissioner was appointed pending the eviction petition and his report clearly shows that damage was caused to the schedule premises, inasmuch as roof itself was removed. The learned counsel, therefore, states that there is a contradiction in the evidence led by the tenant and the plea taken by him in the reply notice-Ex.P2 and as such it is clear that the subsequent stand taken by tenant that landlady herself caused damage is unbelievable. The learned counsel, therefore, seeks to sustain the impugned orders, though for different reasons, so far as the plea of willful default is concerned. In the light of the above rival contentions, the points which fall for consideration are, (1) Whether the tenant is liable to be evicted on the ground of willful default as alleged? and (2) Whether the tenant is guilty of acts of waste of such nature which materially affect the value and utility of the schedule premises? POINT NO.1:- The plea of tenant as noticed from the averments in the counter is that the he had sent a money order dated 2.8.1997 towards the rent for the month of June, 1997 and the said money order was not received by the landlady, but no document was filed by the tenant in support of the said contention. It has to be noticed that the default alleged is for the period from September, 1996 to June, 1997, whereas the plea of the tenant is that he sent the rent for the month of June, 1997 and he does not speak of the arrears from September, 1996 onwards. Though the tenant has tried to establish a practice of payment of rent in lump sum for four or five months, but from the averments in the counter it is not evident that he tendered the arrears of rent at least in June, 1997. Similarly the tenant raised a specific contention that he had filed RCC No. 4 of 1997 for deposit of rent, but neither the said petition nor the orders passed thereon are exhibited. The evidence of the tenant as R.W.1 merely reiterates the contentions in the counter, without there being any document in support of any of the said contentions. In addition, a new ground was raised in the evidence that an advance of Rs.5,000/- was paid to the landlady, but no such averment is found in the counter filed by the tenant. The tenant, however, admits that he paid 17 months rent under Ex.B1 which is a receipt issued by the learned counsel for landlady on 5.3.1999 i.e., during the pendency of the eviction petition. It is, therefore, difficult to believe the version of the tenant that he has not committed willful default, when there is no material to show that the arrears of rent from September, 1996 to June, 1997 were tendered by the tenant at any time. The learned Rent Controller also noticed, “…According to the respondent, he paid the rents till June, 1997. R.W.1 in his evidence stated, the rent for the month of July is sent by way of Money order which was refused by P.W.1. In this matter except Ex.B1, no other documents were marked in support of the case of the respondent……..” In the later part of the order, the learned Rent Controller proceeded to consider the conduct of the tenant pending RCC and ultimately came to the conclusion that the tenant is a wilful defaulter. The lower appellate authority fully confirmed the said findings of the learned Rent Controller merely on the basis of the subsequent conduct of the tenant in not depositing the rents even during the pendency of the eviction petition and on the basis of his further conduct which is evident from Ex.B1 and Exs. P3 to P11- rent receipts filed by the landlady that the tenant was continuing to pay the rents in lump sum. The learned counsel for the tenant, therefore, is right in submitting that the subsequent default which was taken into consideration by the lower appellate authority could not have formed basis for the finding of willful default, in view of the judgment of the Full Bench of this Court, referred to above, as the landlady has never filed any application under Section 11 of the Act. However, the evidence on record as well as the findings of the learned Rent Controller clearly supports the allegations of the landlady that the tenant has committed willful default. The burden to establish that the default is not willful is entirely on the tenant and except filing the receipt-Ex.B1, he has not filed any other document in discharge of the said burden nor has adduced any evidence, other than his own statement. In the absence of any explanation by the tenant and in view of the fact that the tenant failed to pay the arrears of rent from September, 1996 to June, 1997, the learned Rent Controller has rightly come to the conclusion that the tenant committed willful default, which was confirmed by the lower appellate authority on different reasons, though not permissible. The learned counsel for the tenant relied upon a decision of this Court reported in Ramala Ramaiah died per L.Rs. Vs. Moostiala Narasimha Rao [2] to contend that the practice between the parties for payment of rent at irregular intervals, relieves the tenant of willful default. In the present case, the claim of willful default found against the tenant is not merely for non-payment of rent on expiry of every month, but on account of non-payment of huge arrears of rent spreading to over 15 months. The said default having been admitted by the tenant, it was for him to have explained the reasons for the said default to claim that it is not willful default. In the light of the above facts and circumstances of the case and evidence on record, I am of the view that the point No.1 answered in favour of the landlady by both the courts below, warrants no interference. POINT NO.2:- The eviction petition was preceded by Ex.P1, notice dated 27.6.1997 by the landlady and a reply Ex.P2 by the tenant dated 4.7.1997 and the tenant never disputed in his reply-Ex.P2 the allegation of the landlady in Ex.P1-notice that he caused damage to the schedule premises. Exs.P1 and P2 are in Telugu and during the hearing of the revision petition, the learned counsel for the tenant read out Ex.P2-reply and fairly submitted that it does not anywhere state that the landlady herself caused damage to the schedule premises. However, in the counter as well as in the evidence the tenant has taken a specific stand that the landlady herself caused damage to the schedule premises with the help of R.W.2 and the evidence of R.W.2, purported to be a mason, was led to substantiate the said contention. The learned Rent Controller found that in Ex.P2-reply issued by the tenant it was never alleged that the landlady herself damaged the roof and on the contrary the tenant did not deny in Ex.P2 the specific allegation of the landlady that he removed the part of the slab. The tenant, in fact, justified his conduct by claiming that the landlady left the premises without making any repairs. It is in the light of these averments in Ex.P2- reply that the courts below have rightly come to the conclusion that the stand taken by the tenant in the counter as well as in the evidence is clearly an after thought and cannot be accepted. The lower appellate authority also noticed the aforesaid aspects, apart from the fact that an advocate commissioner appointed during the trial also confirmed the damage to the schedule premises and the photographs show that part of the roof was removed. The report of the advocate commissioner was, however, not marked in the evidence nor the said commissioner was examined. Even then, in view of the evidence and the pleadings of the parties, as discussed above, I am unable to find any infirmity in the findings of the courts below on the said aspect. The learned counsel for the petitioner has relied upon a decision of this Court in M/s. Sona Optics rep. By Partner Abdul Kareem Vs. Shyam Sunderbhargava and others [3] to submit that acts of waste which resulted in eviction of the tenant ought to be such acts which materially impair the value of the tenanted premises. There is no quarrel with the said proposition of law. I have considered this aspect of acts of waste, in detail, in a decision reported in Podugu Appa Rao (died)andOrs.Vs. Grandhi Sathiraju (died) and Ors. [4]. In the present case it is evident that the roof itself was damaged and removed partly, which shows that the acts of damage are such that it has materially affected the value and utility of the building. The eviction of the tenant on the said ground is warranted on the facts and circumstances of this case. The point No.2, therefore, also deserves to be answered against the tenant. In the circumstances, therefore, the revision petition fails and deserves to be dismissed. The petitioner-tenant is residing in the schedule premises from 1992 onwards and a reasonable time is necessary to be granted to enable him to vacate and handover the possession of the schedule premises to the respondent-landlady. Accordingly the petitioner-tenant is granted three months’ time to vacate and handover the schedule premises to the respondent-landlady subject to filing of an undertaking before the learned Rent Controller within two weeks from the date of this order that (1) he shall not sub let or create any third party interest or otherwise part with the possession of the schedule premises and (2) that he shall pay all arrears of rent, if any and shall continue to pay the rents till he vacates the schedule premises. In default of any of the above conditions, the landlady shall be free to approach the executing court for execution of the decree. The revision petition is accordingly dismissed. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt.25.6.2010 KR [1] AIR2002AP52,= 2001(6)ALD27,= 2001(5)ALT479 [2] 1996 (4) ALT 666 [3] 1997 (1) ALT 105 [4] 2009 (1) ALD 196 = 2009 (2) ALT 15