Anisetti Ramachandra Rao v. Addepalli Venkata Lakshminarayana Sastri .

1. This revision petition has been referred to us by our learned brother Chandrasekhara Sastry, J., having regard to the question of general importance arising under the Andhra Tenancy Act. The petitioner is a cultivating tenant and the respondent is the landlord owning ac. 7-39 cents of land in Polavaram, and was in possession of the same and cultivated it for the year 1957-58 in respect of which year he paid to the respondent a rent of Rs. 220/- under Ex. B-1 dated 12-3-1958. For the year 1958-59 the petitioner executed a kadapa, Ex. A-1 dated 12-3-58 by and under which the rent was fixed at Rs. 240/- which was payable on or before 9-3-1959. The petitioner, however, did not pay the amount as stipulated on 9-3-1959. He appears to have sent Rs. 220/- only by money order on 6-4-1959 which amount, it is admitted, was received by the respondent on 15-4-1959.

Under Section 13 Clause (a) of the Andhra Tenancy Act, 1956 (Act No. XVIII of 1956), hereinafter to be referred to as the Act, the amount of rent is payable within a month from the date stipulated in the lease deed for payment of rent, so that if the date stipulated was 9-3-1959, the rent should have been paid by 9-4-1959. It is obvious therefore that payment was not made within the period of one month from the date stipulated in the lease deed. Not only was Rs. 240/- not paid within that time but the petitioner paid Rs. 20/- less so that strictly speaking he had not paid the lease amount within the time permitted to him under Section 13 (a) of the Act. The respondent landlord having waited till 4-6-1959 filed an application before the Tahsildar under Section 13 for ejectment; but it appears that on the same day viz., on 4-6-1959 the petitioner sent Rs. 20/- by money order to the respondent at Visakhapatnam which was duly returned with the endorsement that the whereabouts of the respondent were not known. Later he ultimately paid Rs. 23/-, Rs. 3/- being included as interest, on 28-7-'59 in the office of the Tahsildar.

The plea of the petitioner before the Tahsildar was that he was under a bona fide mistake that the rent fixed for the year 1958-59 was the same as for the previous year viz., Rs. 220/- that since the whereabouts of the respondent at the relevant time were not known, he sent the amount of Rs. 220/- by money order on 6-4-1959 within one month from the due date which was 9-3-1959 and that he was not responsible for the delay in the delivery of the money order to the respondent, who, it appears, at the time was at Visakhapatnam undergoing treatment. The Tahsildar held that the petitioner failed to pay the rent due by him within the period of one month from the date stipulated in the lease deed and therefore ordered eviction, which order was confirmed by the Revenue Divisional Officer, Kovvur, who held that even with regard to the amount of Rs. 220/- sent by money order on 6-4-1959 by the petitioner there was default within the meaning of Section 13 Clause (a) of the Act on the ground that the payment of the rent by the tenant through post is at his own risk.

2. Our learned brother expressed the view that where the landlord cannot be found and the money is sent by post, the crucial date is the date on which it is sent by post inasmuch as the Post Office could be deemed to be an agent of the landlord and that it is immaterial whether it reaches the landlord within the time allowed under Section 13 (a) of the Act. Secondly, it was observed by the Revenue Divisional Officer that the petitioner was anxious to pay the full rent due which was Rs. 240/- as agreed to for the year 1958-59 with which view our learned brother also agreed. It may also be stated that the petitioner had urged in appeal before the Revenue Divisional Officer that since the respondent received the rent for the subsequent year 1959-60 without any protest, he must be deemed to have waived his right to get the appellant (petitioner herein) evicted.

3. At this stage it would be profitable to refer to the observations of, our learned brother directing the matter to be posted before a Bench :

as there is no clause in Section 13 stating that if the conditions are fulfilled, the Tahsildar shall order eviction of the cultivating tenant and also considering that the negative way in which the section is framed, I am inclined to take the view that the Tahsildar would have discretion to refuse to order eviction if he is satisfied that the failure to pay the rent is not wilful though the word wilful does not, find a place in Clause (a) of Section 13, This Seems to me an equitable and just view to take of Section 13, having regard to the main object of this legislation. But in view of the fact that prima facie there appears to be some conflict between what is decided in C. R. P. No. 730 of 1958 and the observations in the decisions in Kotaiah v. Kotamma ( 1959) 2 Andh WR 463 and Venkataraju v. Pothuraju, ( 1961) 1 Andh W. R. 381, I direct under Rule 1 of the Appellate Side Rules of the High Court of Andhra Pradesh that this Civil Revision Petition be posted for decision before a Bench of two Judges.

(i) The question that arises for determination is whether it is permissible to apply an equitable rule of construction having regard to the hardship which was felt, and to import into the provisions of section 13 the qualifying words 'failed, to pay' as 'wilfully failed to pay' and secondly, whether the mere acceptance of the rent for the year 1959-60 without protest amounts to waiver.

5. Before we deal with the provisions of the Andhra Tenancy Act, 1956, it is necessary to notice certain decisions of this court which are germane to the question for consideration.

6. In (1959) 2 Andh W. R. 463, by a Bench consisting of the learned Chief Justice and ore of us had considered the language of Sections 7 and 13 of the Act. It was held that on the language of Section 7, there can be little doubt that the deposit should consist of the contractual rent and not the rent to be calculated by the Tahsildar under Section 6 of the Act and that a default in that behalf incurs the consequences mentioned in Section 13. The learned Chief Justice observed "surely failure to pay rent in time is a default within the contemplation of Section 13." After examining the provisions of the section, it was observed thus at page 466:

"This section while creating certain disabilities also confers a right on the landlord to evict the tenant in certain eventualities and the omission to pay rent within the stipulated time one of the defaults enumerated in Section 13 of the Act. Therefore the only consequence of non-compliance with the requirement in this behalf is that Section 13 comes into operation. Thus while such a default results in the tenant being evicted, it does not lead to the dismissal of the petition. Notwithstanding the eviction of the tenant, the Tahsildar has to proceed with the enquiry for the purpose of fixing the fair rent and the rent as fixed by the concerned authority would be the only rent that would become payable by the tenant for the period, during which the tenant was in possession of the land in question."

7. In this view the Bench held that the order upholding the right of the landlord to evict the tenant for failure to make the necessary de-posit was proper and had to be affirmed.

8. In Veerabhadrayya v. Special Tahsildar, 1960 Andh L. T. 227, our learned brother Seshachalapati, J., was considering the effect of the default of payment in a Writ Petition under Article 226 of the Constitution. In that case the Tahsildar had held that knowingly or unknowingly the respondent deposited Rs. 1,072/- in the Urban Bank and that he subsequently withdrew Rs. 558/-and deposited it to the credit of the O. P. According to the fair rent fixed by the Special Tahsildar in O. P. 45 of 1366 Fasli the fair rent was only Rs. 507-10-0. The Special Tahsildar on these facts took the view that inasmuch as the respondent had paid Rs. 588/- the rent due must be deemed to have been paid and consequently he dismissed the petition. In appeal, the Revenue Divisional Officer also affirmed the findings of the Tahsildar. The question that arose for consideration was whether during the pendency of the application under Section 6 of the Act, the requirements of Section 7 which were that the agreed rent should be paid, have been complied with and if not, what is its effect. It was not there in dispute that the agreed rent had not been paid or deposited, and applying the decision of the Bench (1959) 2 Andh W. R. 463, it was held that the decisions of the Tribunals below were erroneous inasmuch as during the pendency of the application for fixation of fair rent, it was the contractual rent that had to be paid and since it was not paid there was a default which entitled the landlord to get the tenant evicted. In dealing with this matter, our learned brother observed thus at page 229 :

"The provisions of this Act are mandatory. While conferring certain rights on the tenants they, to a large extent, abridge the rights of the landlord. In such a case rights and liabilities of the landlords and tenants alike must be strictly construed. Section 13 (1) gives the landlord a right to ask for the eviction of a tenant, who defaulted in the payment of the rent due. That for the year 1956-57 the respondent has not paid the rent due can admit of no doubt. On those findings the Tribunals below were in error in not directing the eviction."

9. Similarly in another case, (1961) 1 Andh W. R. 381, to which a reference has been made by our learned brother Chandrasekhara Sastry, J., Seshachelapati, J., reiterated his previous view that the provisions of Section 13 of the Andhra Tenancy Act are mandatory and should be complied with in terms and any infraction of the mandatory obligation of a tenant to pay the rent within one month from the date stipulated in the lease deed should entail the necessary consequence of eviction. He further observed at page 382 :

"It may be that the landlord acquiesces in the arrangement pleaded by the tenants that the rent and the arrears were to be adjusted out of the sale proceeds of the sugarcane delivered in the sugar factory by the tenants. But that certainly would not be a payment within the meaning of Section 13 (a) of the Act"

10. In Parasuramulu v. Suryanarayanamurthi, (1961)-2 Andh W. R. 312, which dealt with the question of waiver by receipt of payment of arrears of rent, it was held by one of us that acceptance of rent even after the grace period has expired, can be of no avail to the tenant and it would not be open to him to say that the landlord is estopped because he has accepted rent. In considering this question, having regard to the cases of 1960 Andh LT 227 and Jetha Bhulchand v. F.C. Grace, AIR 1923 Cal 227 and Kantu M. Mullick v. Jyotish Ch. Mukherjee, AIR 1949 Cal 571, it was observed thus at page 315:

".................unless there is anything to the contrary in the statute itself, it is not permissible to import the provisions of other statutes, such as the Contract Act or the Transfer of Property Act, to determine the rights of the parties. On the other hand, in this statute, Section 17 has been enacted to make the provisions of that Act applicable notwithstanding anything inconsistent therewith containing in any pre-existing law, custom, usage, agreement or decree or order of a Court. Wherever the Legislature intended to regulate the relationship between the landlord and tenant under the agreement only, in so far as is provided and no further, it has made specific pro vision, such as for instance under Section 5 it has provided that the tenant and landlord may agree among themselves in regard to the quantum of rent payable for a holding, subject to the maxi mum rent specified in Section 3. In Section 6 it has empowered the cultivating tenant and the landlord, notwithstanding any agreement between them, to apply to the Tahsildar for the fixation of fair rent for the holding. Section 13 restricts the power of the landlord to evict the tenant not withstanding anything contained in Sections 10, 11 and 12, relating to the minimum period of lease.

change in the ownership of land during the currency of the lease and continuance of tenancy on the death of a cultivating tenant. It only permits eviction subject to the conditions specified in Section 13, one of which is the failure to pay rent due by the tenant within a period of one month from the date on which the rent is due according to the usage of the locality. There is, therefore, sufficient indication in the Act itself which will show that the provisions of any existing law are not applicable to the conditions prescribed for eviction in Section 13. Acceptance of rent even after the grace period has expired, therefore, can be of no avail to the tenant and it will not be open to him to say that the landlord is estopped because he has acceped rent."

11. As against these decisions, there are two decisions of the single Bench of this court which strike a contrary note.

12. In Subba Rao v. Sundaramma, (1959) 2 Andh WR 135, our learned brother Munikannaiah, J. had held that:

"In as much as the petitioner has not resorted to the course of filing an application in the first instance before the Tahsildar, it does not stand to reason to postulate that he had been thinking at this stage of any proceedings under this section; nor could it with equanimity be said that he was prepared to be in such a complaining mood so as to avail himself of Clause (a) of Section 13. At the same time when the suit was filed, the remedy of evicting the tenant under the Andhra Tenancy Act was certainly available to the petitioner; but having been not prepared to do so, he should be considered as having deliberately adopted a different course, namely, allowing the tenant to continue and only seeking to realise the rents by instituting the suit. The non-consideration of this ground by the Revenue Divisional Officer makes it also in my view necessary to hold that this order worked injustice to the petitioner herein."

13. With great respect we are unable to accept this statement of law. Having regard to the judgment of Bench of this Court in (1959) 2 Andh W. R. 463, and also having regard to the specified provisions of the section which confers a right upon the landlord to get the tenant evicted if the tenant fails to pay the rent within the time specified in Section 13 (a) the acceptance of rent after the time specified in section 13 (a) does neither make that acceptance a payment within the meaning of Section 13 (a). Nor can that by itself be construed as a waiver entitling the tenant to continue in possession. Even in cases where default is committed which furnished a ground for the land-lord to get the tenant evicted, the right to recover rent from the tenant would entitle the landlord to take proceedings against the tenant notwithstanding the fact that he had already been evicted due to omission to pay the amount in time. The tenant's obligation to pay the tent being a subsisting one, the acceptance by the landlord of the rent after the default in payment within the time specified in Section 13 (a) does not by itself amount to a waiver. It may be that the period of limitation is running out and the land-lord is obliged to accept it. The payment of rent by the tenants and its acceptance by the land-lord even after the date stipulated may be beneficial to both as they may be saved the costs of litigation. Whatever may be the considerations for accepting the payment of rent after the default it cannot by itself justify a conclusion that it amounts to a waiver and estops the landlord from taking steps to evict the tenant

14. The other judgment to which our learned brother Chandrasekhara Sastry, J., has referred to is that of Sanjeeva Row Naidu J., which is an unreported one, in C. R. P. No. 738 of 1958, D/- 9-2-1962. At the very out set it may be stated that the learned Judge seemed to have been greatly influenced by some concession made by the learned Advocate appearing for the landlord and seemed to have assumed that failure to pay amounted to wilful failure to pay. It is observed:

"Mr. Pathasarathi, no doubt, was willing to-construe the word 'failed' as amounting to wilful failure. In the instant case the failure to pay a fraction of the rent viz., 8 bags, assuming that the total rent payable is 50 bags, was due to an hones and genuine difference as to the terms of the tenancy. This becomes even more important in view of the fact that the previous landlord has gone out of the picture and the petitioners had recently purchased the property but admittedly had not entered into any arrangement with the respondent."

15. At another place, after referring to the provisions of Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949, the learned Judge was of the view that:

......the usual judicial discretion which is available to Courts and Judges in making Judicial decision is always available to Tahsildar holding an enquiry, and the Revenue Divisional Officer hearing an appeal under Section 16 of the Act. That being a normal incident of a judicial disposal, had the legislature intended otherwise, it would have stated so in the same way as it was stated in Section 7 of the Madras Buildings (Lease and Rent Control) Act. The absence of such a compelling or mandatory provision either in Section 13 or in Section 16 of the Act leaves the matter in no doubt. Further to make any such provision which would ipso facto entitle the landlord to an order of eviction, irrespective of all other considerations, would in itself defeat the very purpose and the policy of the legislation. Hence, such an interpretation should not be placed upon those sections-There may be hard cases where interests of justice demand that no such order of eviction should be made. Taking a case under Clause (a) of Section 13, supposing the rent is payable on an agreed date viz., the 15th March of the year, the tenant having collected the rent maybe on his wav to the place of the landlord with the honest and avowed object of paying the rent to him before the expiry of the time, namely one month from the agreed date, and meets with an accident and remains unconscious, consequently, for a number of days in the hospital and, therefore, failed to pay the rent by the due date. Undoubtedly, there is failure to pay the rent within the meaning of Clause (a). But do the circumstances justify an order of eviction being made by reason of this technical default, which was due to circumstances beyond the control of the tenant? Obviously not. There may be other hard cases where default is by no means wilful but accidental or due to causes beyond control, or, as in this case, may be due to an honest difference of opinion as to the terms of the tenancy, the tenant contending that it is more. Surely, the Legislature which had purposely enacted this Act in the best interests of the tenant? would not have contemplated such drastic results to follow when Section 13 was included as a section in the Act

With all due respect to these observations of the learned Judge, we cannot accept the propositions laid down by him in the passage above extracted that would be arrogating to the Judges the functions of a Legislature. If the effect of the application of a provision of law is to create hardships, it is not the duty of the Courts to alter that law in a manner which, they think, is fit or proper. Certain canons of interpretation, which have been well established both in England and in this Country, are applied in deducing the intention of the Legislature. Notwithstanding many decisions of this Court and particularly a Bench decision which was binding on the learned Judge, not one had been referred to or dealt with. As such the observations are contrary to the binding authority. To say as the learned Judge seems to say that there may be a genuine dispute regarding the amount of rent payable, which would absolve the tenant from paying the rent, would be to confer a unilateral right on a tenant to dispute the rent in order to escape his obligations under the contract of lease and to get over the provisions of section 13 which confers a right on the landlord on default being made to get the tenant evicted.

Such could not have been the policy of the Legislature. As has been repeatedly observed that where the rights are being abridged by legislation, the legislature is accredited with an anxiety to circumscribe the limits within which those rights are restricted, as such in construing such statutes the Courts having cognizance of the matter would place a strict interpretation on the provisions which are declared to be mandatory. It is difficult to postulate hypothetical cases when they do not arise on the facts of a particular case, as that would lead to a great deal of confusion and any expression of views on such hypothetical cases would certainly be obiter. Construing the language of the Section 13(a), it would appear to us that the words used there clearly indicate that a failure on the part of the tenant to pay the rent within a period of one month from the date stipulated in the lease deed would make him a defaulter.

It may be observed that the acceptance of the amount within the time stipulated when the tenant pays the amount is not a necessary condition and in cases where the tenant tenders the money within the time but the landlord refused to accept it or where the tenant takes the money to the landlord's house and finds that the landlord is not there and his whereabouts are not known, it cannot be said that the tenant has failed to pay the rent due by him because all that be could do, he has done. He cannot compel a receipt by the landlord if he refuses to receive it or he cannot traverse the ends of the earth to find him if he is not at the place where he is ordinarily residing. As we said, we do not propose to examine all hypothetical contingencies that can arise and at the same time we may say that a construction placed merely to relieve hard cases would expose us to the charge of contributing to bad law.

16. Nor is it permisible for us to place equitable construction where the statute is clear, precise and unambiguous. The function of the Courts in interpreting a statute is to deduce the legislative intent and when this intent is doubtful or obscure, recourse may be had to the spirit and reason of the law. Only to that extent we can Say that any doctrine of equitable construction can be said to have any validity. A Court of law cannot give any relief howsoever equitable it might be if it is in conflict with the express direction contained in the statute. If the words of the statute are vague or ambiguous and are capable of being construed in a manner which is consistent with the equity of the case, they can be so interpreted but where the direction contained in the statute is clear and unambiguous it is not open to a Court to disregard that direction.

17. The examination of the provisions of the Act would show that a right is being conferred upon the tenant in derogation of the right of the land-lord to extend the period of his tenancy to 6 years notwithstanding the fact that the period, which was stipulated, is only a very short one. It is for this reason that Section 13 (a) has specified the grounds upon which the tenant would be liable to be evicted, and in the light of this background it is evident that those grounds have been carefully considered and inserted entitling the landlord to terminate the lease and evict the tenant. The legislature took into consideration that the mere default of payment within the stipulated period would not entitle the landlord to terminate the lease or evict the tenant but further gave the tenant one more month's time as a period of grace within which the tenant could pay the amount. When it came to specifying the ground as in Section 13 (e) the Legislature used the word 'wilfully' as it is quite possible that in certain cases where there is conflict between two persons setting up title, the tenant may want to protect himself by saying that ha will pay the rent to such of those persons as may establish their title, which might be considered to be a denial of the title of the person from whom he has taken the lease, but at the same time that may not be a wilful denial of title. If the Legislature intended to use that word or any other word, it could have used it in relation to grounds specified in Section 13(a). We cannot, therefore, read "failed to pay" occurring in Section 13(3) as 'wilfully failed to pay' or as 'deliberately failed to pay'.

18. The next contention of the learned Advocate is that since there is no provision in section 13 making it obligatory on the Tahsildar to evict the tenant, it confers a discretion. We are unable to appreciate this argument because Section 13, though worded in the negative, is more emphatic than it would have been, had it been drafted without the negative. Negative words have the effect of giving the provisions an imperative effect. Having regard to the provisions of sections 10, 11and 12, it was necessary to state in Section 13 that notwithstanding anything contained in those sections, no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application made in that behalf to the Tahsildar and unless one or more of the conditions specified thereafter have been fulfilled so that the landlord will only be entitled to evict his tenant if he files an application before the Tahsildar and if he proves that the tenant has omitted to fulfil one or the other of the conditions specified in (a) to (f). The mere fact that the legislature has not specifically said that if the landlord satisfies these two conditions, the tenant should be evicted, does not confer a discretion upon the Tahsildar to refuse to evict the the tenant, even though those conditions have been well established.

19. Section 13 should be read with Section 16(a) which enjoins upon the ahsildar to make an enquiry in the manner prescribed and pass an order against which order an appeal is provided under Sub-section (2) to the Revenue Divisional Officer. A combined reading of Sections 13 and 16 would show that on an application being filed, an enquiry has to be held, by the Tahsildar and the matter has to be determined and an order passed. The Tahsildar has, in our view, no discretion to refuse to evict the tenant if he came to the conclusion that the conditions specified in Section 13(a) to (f) have been established.

20. In this view of the matter, we think that the Revenue Divisional Officer and the Tahsildar are right in directing the eviction of the tenant and accordingly we dismiss the revision with costs. Advocate's fee Rs. 100/-.