*HON’BLE SRI JUSTICE P.S. NARAYANA +CIVIL REVISION PETITION No.6422 of 2006 and CIVIL REVISION PETITION No.2113 of 2008 % 31-5- 2010 CIVIL REVISION PETITION No.6422 of 2006 Between: #1. Rajnikanth Mehta and 2 others. … Petitioners/Respondents Tenants And $1. Mohd. Abdul Rahman and 12 others … Respondents/Appellants/ landlords CIVIL REVISION PETITION No.2113 of 2008 Between: 1. Mohammed Abdul Rahman and 12 others. … Petitioners/Respondents/ Petitioners And 1. Rajnikanth Mehta and 2 others … Respondents/Appellants/ Respondent !Counsel for the petitioners: Smt. Manjiri S. Ganu Counsel for the respondents: Sri Hanumanthu Rajagopal Rao <Gist: >Head Note: ?Cases referred: 1. AIR 1985 Supreme Court 582 2. 2008 (4) ALT 147 (F.B.) 3. 2006 (1) ALT 111 (D.B) 4. 2008 (6) ALT 645 5. 2007 (4) ALT 49 6. AIR 2004 Supreme Court 495 7. 2008 (6) ALT 446 8. 2000(1) ALT 551 9. 2006 (1) ALT 423 10. AIR 1971 Andhra Pradesh 298 11. AIR 1983 Andhra Pradesh 244 12. AIR 2007 SC (Supp.) 74 13. 2008 AIR SCW 6201 14. AIR 2008 Supreme Court 773 15. (2010) 1 Supreme Court Cases 503 HON’BLE SRI JUSTICE P.S. NARAYANA CIVIL REVISION PETITION No.6422 of 2006 and CIVIL REVISION PETITION No.2113 of 2008 Date:May 31, 2010 CIVIL REVISION PETITION No.6422 of 2006 Between: 1. Rajnikanth Mehta and 2 others. … Petitioners/Respondents Tenants And 1. Mohd. Abdul Rahman and 12 others … Respondents/Appellants/ landlords * * * CIVIL REVISION PETITION No.2113 of 2008 Between: 1. Mohammed Abdul Rahman and 12 others. … Petitioners/Respondents/ Petitioners And 1. Rajnikanth Mehta and 2 others … Respondents/Appellants/ Respondent * * * HON’BLE SRI JUSTICE P.S. NARAYANA CIVIL REVISION PETITION No.6422 of 2006 and CIVIL REVISION PETITION No.2113 of 2008 COMMON ORDER: These two civil revision petitions are filed under Section 22 of the A.P. Buildings (lease, rent and eviction) Control Act, 1960 (hereinafter in short referred to as “Act” for the purpose of convenience) by the tenants and the landlords respectively as against the common order made in R.A.No.202 of 2002 and R.A. No.219 of 2002 being aggrieved of the portions of the order and the relief made in R.C.No.474 of 1998 on the file of IV Additional Rent Controller, Hyderabad. 2. In view of the commonality involved in both these civil revision petitions and in the light of the fact that both the R.As. aforesaid also had been disposed of by a common order by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, the Appellate Authority, these civil revision petitions are being disposed of by a common order by this Court. 3. Heard Smt. Manjiri S Ganu, learned counsel representing tenant and Sri Hanumanthu Rajagopal Rao, learned counsel representing landlords. 4. The tenants filed C.R.P.No.6422 of 2006 and the landlords filed C.R.P. No.2113 of 2008 being aggrieved of the common order made in R.A. No.219 2002 and R.A. No.202 of 2002 which were preferred as against the order made in R.C. No.474 of 1998 on the file of IV Additional Rent Controller, Hyderabad. 5. The landlords filed the said R.C. No.474 of 1998 on the ground of wilful default, on the ground of bona fide personal requirement and on the ground of securing alternative accommodation. The learned Rent Controller recorded the evidence of P.Ws.1 and 2, R.W.1, marked Exs.A-1 to R-29 and Exs.B-1 to B-43 and came to the conclusion that there is no wilful default in payment of rents and the tenants had not secured alternative accommodation and the tenant did not claim permanent tenancy, but however, ordered eviction on bona fide personal requirement. Aggrieved by the same, the tenants preferred R.A. No.202 of 2002 and the landlords preferred R.A. No.219 of 2002 and the Appellate Authority after formulating the points for consideration at para 20 recorded reasons and came to the conclusion that the ground of wilful default had been established. The Appellate Authority also referred to the decision in Satyanarayana v. Moizuddin Khan (2005 (4) ALD 249) and recorded further findings at paras 33, 34 and 35 and confirmed the said finding of the learned Rent Controller. The Appellate Authority also came to the conclusion that the tenants did not set up any permanent tenancy and, hence, declined to grant eviction on that ground confirming the finding of the learned Rent Controller. However, while answering point No.4 elaborate reasons had been recorded at paras 37 to 49 and came to the conclusion that ordering eviction on the ground of bona fide personal requirement cannot be sustained and accordingly reversed the said finding, but however, ultimately ordered eviction on the ground of wilful default. Aggrieved by the respective portions, the present civil revision petitions had been filed by the tenants and the landlords as already aforesaid. 6. Smt. Manjiri S Ganu, the learned counsel representing tenants had explained the respective stands taken by the parties and the findings recorded and would maintain that the Appellate Authority failed to notice that the landlords were receiving rents from the tenants up to October 1997 and on 17.10.1997 the original tenant i.e., the father of the present tenants died and the rents tendered thereafter from November 1997 onwards were refused in a mala fide way by the landlords compelling them to file R.C.No.73 of 1998 in which Ex.B-1 order was made. The learned counsel also would maintain that the Appellate Authority failed to note that during the pendency of the rent case, an interim permission was given under which the tenants deposited all rents which is evident from ledger extract Ex.B-42 and thus the tenants have been depositing the rents into bank account. The learned counsel also explained the sequence of events. The counsel also would maintain that in the light of the facts and circumstances to order eviction on the ground of wilful default stating that intimation of deposit as required under Rule 5 of the Rules had not been complied with definitely cannot be sustained. The learned counsel also pointed out to the respective pleadings and the evidence available on record and would maintain that in the light of the same it cannot be said that the ground of wilful default is established and, hence, the civil revision petition filed by the tenants to be allowed. While further elaborating her submissions, the learned counsel also had taken this Court through the other findings recorded by the Appellate Authority and would maintain that since the said findings are to be confirmed, the other civil revision petition filed by the landlords to be dismissed. The learned counsel relied on several decisions to substantiate her submissions. 7. Per contra, Sri Hanumanthu Rajagopal Rao, the learned counsel representing landlords would maintain that it is the prerogative of the landlords to choose their own building and this aspect had been totally ignored and apart from the ground of wilful default even on other grounds eviction should have been ordered and, hence, the civil revision petition filed by the landlords to be allowed and the civil revision petition filed by the tenants to be dismissed. The learned counsel also had further taken this Court through the oral and documentary evidence available on record and further relied on several decisions to substantiate his submissions. 8. Heard the counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the learned Rent Controller and also the Appellate Authority. 9. In the light of the submissions made by the counsel on record, the following points arise for consideration in these civil revision petitions. (1) Whether the findings recorded by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, in R.A.No.219 of 2002 and R.A. No.202 of 2002 by a common order to be disturbed or to be confirmed in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? Point No.1: 10. For the purpose of convenience, the parties hereinafter would be referred to as “landlords” and “tenants” as shown in R.C.No.474 of 1998 on the file of IV Additional Rent Controller, Hyderabad. 11. Averments made in the R.C. No.474 of 1998 as hereunder: The petitioners-landlords are the owners and landlords of the property bearing mulgi No.5-2-1022 situated at Jawaharlal Nehru Road, Mozamjahi Market, Hyderabad and the respondents are tenants having obtained the same from the petitioners-landlords’ vendor. The petitioner-landlord purchased the property under a registered sale deed dated 18.6.1991 and after the death of the original tenant on 17.10.1997 the respondent-tenant failed to pay the rents to the petitioners-landlords for the period from November 1997 to June 1998 at Rs.100/- per month and in order to cover the default period, filed R.C. No.73 of 1998 on the file of III Additional Rent Controller, Hyderabad and failed to follow the procedure under Section 8 of the Rent Control Act and are liable to be evicted. 12. It is also averred that the respondent-tenant secured alternative accommodation and was carrying business at Siddiamber Bazar, Hyderabad and also at Secunderabad and, hence, they are liable to be evicted. 13. Further it is averred that petitioner No.5 was not at all in possession and enjoyment of non-residential premises in Hyderabad and Secunderabad except the petition mulgi. In spite of petitioners- landlords’ demand, the respondents-tenants failed to vacate the premises. Hence, the petition. 14. Respondents-tenants filed counter as hereunder: Section 10(3) of the Act had no application, as the petitioners- landlords were already in occupation of more than one non-residential building in the city of Hyderabad and carrying on business. In the event of their being no termination of tenancy, the petitioners had no cause of action to claim eviction of the respondents-tenants. It is not denied that the petitioners being the landlords of the demised mulgi No.5-2-1022. It is denied that Lal Mohan T. Mehta died on 17.10.1997 so also the tenancy is month to month. The understanding with the original lessor had been to continue the tenancy as long as the tenants occupied and continued the business thereon. It is denied that the respondents-tenants failed to pay the rents from November 1997 to July 1998. The respondent-tenant filed R.C. No.73 of 1998 for depositing the rents into court and in that R.C. petitioner-landlord furnished his bank account number on the day when the order was passed and not when demanded by the respondent-tenant. After collection of rent in the month of October 1997 petitioners-landlords evaded to receive the rents. The respondents-tenants are continuously depositing the rents to the credit of R.C. No.73 of 1998. 15. It is also stated that the respondents-tenants had not secured any alternative accommodation either at Siddiamber Bazar, Hyderabad, or at Secunderabad and they are carrying their business in the petition mulgi only. It is denied that petitioner No.5 is a unemployee and that he is having experience in hardware and general goods business and that he had sufficient funds to commence the business. It is denied that petitioners-landlords are not in possession of any non-residential premises in Hyderabad and Secunderabad except the petition mulgi. The petitioner on his own admissions is carrying on business. The present petition is filed as a counterblast to R.C. No.73 of 1998. 16. Further it is stated that the entire building was purchased by the petitioners-landlords and it is located in a busy commercial locality and the entire first floor admeasuring 800 square feet is lying vacant since the last several months except the room which is in occupation of another tenant. The tenancy in respect of the petition mulgi was created four decades ago and there was no room for complaint to any of the landlords. 17. The learned Rent Controller formulated the following points for consideration: (1) Whether the respondents have committed wilful default in payment of rents from November 1997 at Rs.100/- per month fill June 1998? (2) Whether the respondent has secured alternative accommodation at Siddiamber Bazar and Secunderabad? (3) Whether the 5th petitioner bona fidely requires the petition premises for establishing hardware and general store business? (4) Whether the respondent had mala fidely claimed permanent tenancy? 18. Before the learned Rent Controller, the under noted evidence had been recorded and the documents had been marked. Appendix of evidence Witnesses examined For petitioners-landlords P.W.1: Mohammed Abdul Rahman P.W.2: Mohd. Abdul Sattar For respondents-tenants: R.W.1: Mukund Lal Mehta Documents marked For petitioners-landlords: Ex.A-1: Rough sketch plan Ex.A-2: Office copy of letter of attornment Ex.A-3: Postal acknowledgement Ex.A-4: Postal receipt Ex.A-5: Municipal tax receipt Ex.A-6 to : Photographs with negatives Ex.A-9: Ex.A-10: Bill dt.27.7.2001 Ex.A-11 & : Cash bills Ex.A-12 Ex.A-13: Invitation card Ex.A-14: Envelope cover Ex.A-15 to : M.O. space for communication slips Ex.A-29: For respondents-tenants: Ex.B-1: Certified copy of order in R.C.73/98 Ex.B-2 to : Certified copy of sale deeds Ex.B-7: Ex.B-8 to : Photograph with negatives Ex.B-17 Ex.B-18: M.O. acknowledgement Ex.B-19: Postal receipt Ex.B-20: Acknowledgement Ex.B-21 to : Ex.B-23: Postal receipts Ex.B-24 to : M.O. coupons Ex.B-26: Ex.B-27: Office copy of legal notice dt.24.1.98 Ex.B-28 to : Postal receipts Ex.B-33: Ex.B-34 to : Returned postal covers Ex.B-39 Ex.B-40: Postal receipt Ex.B-41: M.O. coupon Ex.B-42: Certified copy of ledger account Ex.B-43: Notice dt.17.11.91 19. The learned Rent Controller while answering point No.1 came to the conclusion that there is no wilful default in payment of rents. While answering point No.2 came to the conclusion that the tenants had not secured any alternative accommodation, while answering point No.3 recorded reasons on the ground ‘bona fide requirement’ and ultimately came to the conclusion that the requirement of the 5th petitioner is bona fide. While answering point No.4 the learned Rent Controller recorded certain further findings and came to the conclusion that there was no claim of permanent tenancy by the tenants and ultimately ordered eviction only on the grounds specified supra granting the tenants two months time to vacate the premises from the date of order. 20. As already aforesaid, aggrieved by the order of eviction made, the tenants preferred R.A. No.202 of 2002 and aggrieved by the negativing of the other grounds while ordering eviction the landlords filed R.A. No.219 of 2002 and the learned Appellate Authority having recorded reasons in detail reversed the findings recorded by the learned Rent Controller on the ground of wilful default and ordered eviction. But however, reversed the findings recorded by the learned Rent Controller on the ground of bona fide personal requirement, but however confirmed the findings of the learned Rent Controller on the ground of securing alternative accommodation and also permanent tenancy. 21. On the ground of wilful default, the burden is on the tenants to prove that they have not committed any default, much less, wilful default. The learned Appellate Authority recorded reasons at paras 22 to 31 and came to the conclusion that on the ground of non- compliance of Rule 5 (4) of the Rules, since the wilful default had been established, the findings had been reversed and the eviction had been ordered. 22. Reliance was placed on the decision in S. Sundaram Pillai v. V.R. Pattabiraman[1] wherein the Apex Court at paras 21 to 25 observed as hereunder. “Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary' of Law by L. B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus: 'wilful' - deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing. 'wilful default' - Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Volume 11-A (Permanent Edition) at page 268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In volume 45 of Words and Phrases, the word 'wilful' has been very clearly defined thus : 'wilful' - intentional: not incidental or involuntary; - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently; - in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary. P. 296-'wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. In Volume III of Webster's Third New International Dictionary at page 2617, the word 'wilful' has been defined thus: governed by will without yielding to reason or without regard to reason obstinately or perversely self- willed The word 'default' has been defined in Vol. I of Webster's Third New International Dictionary at page 590 thus: to fail to fulfil a contract or agreement, to accept a responsibility ; to fail to meet a financial obligation. In Black's Law Dictionary (Fourth Edn.), at page 1773 the word 'wilful' has been defined thus: 'wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice. The word 'reckless' as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause. it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.” 23. In Mohammed Izhar Ali v. Smt. Olive founseca (died per L.Rs. and others[2] the Full Bench of this Court following the view expressed in N.D. Thadani (dead) by Lrs. V. Arnavaz Rustom Printer, Mumbai and another (2004 (3) ALT 1 (SC)) answered the reference in the following terms. “Therefore, the reference has to be and is answered accordingly in the following terms: (1) Though Section 8 of the Andhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960 is directory and optional, a tenant taking advantage and benefit of the said provision has to strictly and mandatorily comply with the procedure prescribed under Rule 5 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961. (2) While deposit of rent in terms of the provisions of the Act and the Rules amounts to valid tender of rent to the landlord, the failure to comply with sub-rule (3) of Rule 5 requiring delivery of a copy of the challan for the deposit of rent in the office of the controller or the appellate authority, as the case may be, so as to enable the Controller or the appellate authority to cause maintenance of proper accounts under sub-rule (5)and give notice of deposit to the person or persons concerned within seven days of such delivery of copy of the challan in one or the other of the modes specified in Rule 16 (paying within a reasonable time the prescribed fee as per Rule 17 for service of such notice, if the tenant himself did not serve such notice directly on the landlord or the advocate appearing for the landlord)under sub-rule (4), amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord; (3) Sub-rule (1) and/or sub-rule (3) of rule 5 of Rules do not prescribe any time limit for depositing rent after obtaining permission for such deposit from Rent Controller under section 8 (5) of the Act. A perusal of sub-rules (2) and (3) of Rule 5 of rules, however, shows that after obtaining permission a tenant has to deposit rent every month and as required under sub-rule (3) of Rule 5 of the Rules shall deliver rent challan in the office of Rent Controller or appellate authority as the case may be. A perusal of Section 10 (2) (i) of the Act would show that in the absence of any agreement, rent has to be paid by the last day of month next following that for which rent is payable or if there is agreement of tenancy within 15 days after expiry of time fixed in the agreement. This indicates some guidance as to reasonable time for deposit of rent. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven (7) days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default, as per conclusions on question Nos. 1 and 2 above. (4) There is no conflict between section 10 (2) (i) and Section 10 (2) proviso on one hand and Rule 5 on the other.” 24. The Full Bench, in fact, had referred to the under noted decisions: (1) Pratap Singh v. Shri Krishna Gupta and others (AIR 1956 SC 140) (2) Administrator, Municipal Committee Charkhi Dadri and another v. Ramjilal Bagla and others ((1995) 5 SCC 272. (3) Kailash v. Nanhku and others (2005 (3) SCJ 303 = 2005 (4) ALT 30.2 (DN SC) (4) M.P. Purushothaman v. Govt. of A.P. and others ((2004) 11 SCC 547. (5) Ganesh Prasad Sah Kesari and another v.Lakshmi Narayan Gupta ((1985 3 SCC 53). (6) Shaikh Salim Haji Abdul Khayumsab v. Kumar and others (2006 (1) ALT 1 (SC). (7) Bharat Petroleum Corporation Limited v. N.R. Vairamani and another ((2004) 8 SCC 579 = 2005 (1) ALT 32.1 (DN SC). (8) Vemuri Somisetti v. M/s. Vagicherla Guravaiah and sons (1975 (2) An.W.R. 370) (9) Nagula Konda Marayya v. P.V.G. Raju (1985 (1) An.W.R. 433) (10) Nimmagadda Krishna Hari and another v. Manepalli Mangamma (2001 (6) ALT 765 (DB). (11) Hari Prasad Badruka v. T. Lakshmi and others (2000 (1) ALT 551). (12) Smt. Amavaz Rustom Printer, Mumbai and another v. N.D. Thadani and another (2001 (4) ALT 509). (13) J.M. Benedict v. Mithileswari Jaiswal (2002 (4) ALT 509). (14) Vinukonda Venkata Ramana v. Mootha Venkateswara Rao and another (2001 (5) ALT 479 (F.B.). (15) Fakruddin Ali Tarwala v. Ved Prakash Mishra and others (2002 (6) ALT 421). (16) Munnalal and others v. Englarg Pershad (2007 (4) ALT 49). (17) N.D. Thadani (dead) by Lrs. V. Amavaz Rustom Printer, Mumbai and another (2004 (3) ALT 1 (SC)). (18) Suganthi Suresh Kumar v. Jagdeeshan (2002 (1) ALT (Crl.) 250 (SC). (19) Ammena Bee v. Noorjahan Bedum and others (2001 (1) ALT 510). (20) Linga Pentamma and others v. T. Jagadishwar Rao and others (2006 (1) ALT 111 (D.B.). (21) E. Palanisamy v. Palanisamy (2002(7) Supreme 574). (22) Balwanth Singh and others v. Anand Kumar Sharma and others (2003 (6) ALD 69 (SC) = 2003 (3) ALT 17.3 (DN SC). (23) Lakhan Rai v. Ram Kumar Aggarwal (AIR 1979 SC 824). (24) Duli Chand v. Maman Chand ((1980) 1 SCC 246). (25) Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao and another (AIR 1989 SC 2185). (26) M. Bhaskar v. J. Venkatarama Naidu ((1996) 6 SCC 228 = 1996 (4) ALT 32 (DN). (27) Kanigalupula Subbamma v. Jangala Venkata Ramamma (1965 (2) An.W.R. 381 (D.B.). (28) Dekaya alias Dakaiah v. Anjani (1996 (1) ALT 1 (SC). (29) Maiku v. Vilayat Hussain through L.Rs. (AIR 1986 SC 1645). (30) Kuldeep Singh v. Ganpat Lal and another ((1996) 1 SCC 243). (31) Inter-State Transport Agency v. Bibi Habiba Khatoon ((1998) 4