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Case Number

C.R.P No. 1176/89

Attorney(S)

For the Appellant: Om Prakash Mishra, V.Padma, Advocates.

Judges

Radhakrishna Rao, J.

Acts

Sections 10(2)(i), 10(2)(ii)(a) and 10(2)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as the Act)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision petition was filed by the tenant challenging the order of the Additional Chief Judge, City Small Causes Court, Hyderabad in RA No. 277 of 1985 which allowed the landlord's appeal against the judgment of the Principal Rent Controller in RC No. 501 of 1979. The landlord sought eviction of the tenant from premises at No. 3-2-10, Kachiguda, Hyderabad, under Sections 10(2)(i), 10(2)(ii)(a) and 10(2)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act on three grounds: wilful default in payment of rent, subletting without consent (allegedly to Miss Tressie Thomas), and causing damage to the premises.

Procedurally, the landlord was examined as PW-1 and produced Exhibits A-1 to A-47. The tenant was examined as RW-1 and produced Exhibits R-1 to R-118 (also referenced as B-series receipts in the analysis). The Rent Controller dismissed the eviction petition finding the landlord failed to prove the grounds. On appeal, the Additional Chief Judge reversed the Rent Controller, finding wilful default, subletting and damage, and ordered eviction. The tenant then filed this revision petition challenging the appellate court's findings.

Legal Issues Presented

Whether the tenant committed wilful default in payment of rent (specifically for the months September to November 1979) so as to justify eviction under the Act.
Whether the tenant sub-let the demised premises without the landlord's written consent, in breach of Section 10(2)(ii)(a) of the Act.
Whether the tenant committed acts of waste or caused damage to the building sufficient to justify eviction under the Act.

Arguments of the Parties

Landlord's Arguments

The tenant wilfully defaulted in payment of rent for the period September to November 1979.
The tenant sub-let the premises to one Miss Tressie Thomas without the landlord's written consent.
The tenant caused damage to the premises (alleged removal of stone slabs, damage to the main gate, and other impairments to the building), justifying eviction.
Evidence presented included the landlord's testimony as PW-1 and Exhibits A-1 to A-47 (photographs A24–A35 among them).
The landlord challenged the authenticity of certain rent receipts (alleging forgery of Exs. B-116 and B-117).

Tenant's Arguments

The tenant ran a school (Baby Land K.G & U.P. School) on the premises since 1969 and there is no dispute as to the tenancy relationship.
Receipts (Exs. B-1 to B-118, specifically B-116 and B-117) show a course of conduct where rent was paid once in two months and accepted by the landlord for years; late payments for September and October 1979 were paid and the receipts were filed after the death of the rent collector (M. Kistaiah).
The pattern of accepting irregular payments over a long period means the late payments cannot be characterized as wilful default; at most they are simple defaults.
The alleged subletting to Miss Tressie Thomas was only temporary accommodation; letters (Exs. A-22 and A-23) indicate the tenant asked Tresses to vacate and that no rent/consideration was received.
The landlord failed to examine the photographer for the marked photographs and did not seek appointment of a Commissioner to inspect the premises; the building was old and some decay could be attributed to age and use as a school rather than acts of waste by the tenant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dr. T.S. Kumar v. Smt. K. Lakshmi Bai	Non-payment of rent for a particular (short) period cannot automatically be construed as wilful default; default for one month was held not to be wilful.	The court relied on this to support the proposition that short or isolated late payments should be viewed cautiously and do not necessarily amount to wilful default.
S.P. Deshmukh v. Shah Nihal Chand Waghajibhai, (1977) 3 SCC 515; AIR 1977 SC 1985	A monthly tenant's obligation to pay month to month is subject to contract or the conduct of the parties; conduct over time may show acceptance of payments at intervals.	Applied to conclude that the landlord's long-standing acceptance of rent at intervals (once in two months) indicated consent to irregular payments, undermining the claim of wilful default.
G. Rangamannar v. Desu Rangaiah, AIR 1954 Madras 382	Mere permission for others to use the premises while the lessee retains legal possession does not create a sub-lease; exclusive possession must vest in another to constitute subletting or assignment.	Used to explain that user by others without divesting the tenant of legal possession does not establish subletting.
Petroleum Workers Union v. A. Mohamed & Co., AIR 1967 Madras 33	Permission to use premises by others (e.g., for meetings) without transfer of legal possession does not constitute subletting.	Cited to reinforce that allowing others to use premises transiently is not necessarily subletting.
Viswa Nath v. Chaman Lal Khauna, AIR 1975 Delhi 117	Mere user by other persons is not parting with possession so long as the tenant retains legal possession; vesting of exclusive possession in another is required for subletting.	Applied as part of the legal framework to assess whether the facts showed vesting of possession to another person.
Sachindra Nath Shah v. Santosh Kumar Bhattacharya, 1986 Supp SCC 661; AIR 1987 SC 411	Allowing paying guests to stay and entering into agreements for food and accommodation (lumpsum payments) was held not to be subletting in that case.	Used by the court to compare the facts: where no clear consideration or agreement for exclusive possession existed, short-term accommodation of a teacher (Tresses) was not subletting.

Court's Reasoning and Analysis

The court proceeded issue by issue, applying statutory provisions, evidence on record and the cited authorities.

Wilful default in payment of rent:
- The Rent Controller had compared the signatures on receipts (Exs. B-116 and B-117) with admitted signatures of the rent collector (M. Kistaiah) and found them genuine; the landlord did not obtain handwriting expert opinion though he alleged forgery. The appellate court had not compared these signatures with other admitted signatures.
- The court noted a long-standing pattern: receipts (printed and handwritten/typed) in Exs. B-1 to B-118 show rent was commonly collected or paid once in two months, and the landlord had accepted late payments over a long period without issuing complaints or notices.
- Relying on precedent (notably S.P. Deshmukh and Dr. T.S. Kumar), the court held that such conduct by the landlord — accepting irregular payments over time — estops the landlord from characterizing late payments in September–November 1979 as wilful default. Non-payment for a short period under the established conduct of the parties amounts to default but not wilful default.
- Accordingly, the court set aside the appellate finding of wilful default and affirmed the trial court on this ground.
Subletting:
- The court outlined the legal test: subletting requires vesting of exclusive possession in another; mere permission to use the premises or temporary accommodation without consideration and without divesting the tenant of legal possession does not constitute subletting.
- Applying authorities (G. Rangamannar; Petroleum Workers Union; Viswa Nath; Sachindra Nath Shah), the court examined the material: PW-1 could not state definitively the nature of the alleged sub-tenant's occupation; letters of the tenant (Exs. A-22, A-23) suggested temporary accommodation and a request to vacate; there was no evidence of consideration paid to the tenant by Tresses.
- On these facts the court concluded the appellate finding of subletting was not supported by evidence and set it aside.
Damage to the premises / acts of waste:
- The landlord relied on photographs (Exs. A24–A35) and PW-1's evidence alleging removal of shabad stones, damage to the main gate, and other impairments.
- The trial court had noted that the landlord did not examine the photographer and did not seek appointment of a Commissioner to inspect the building; the appellate court accepted the photographs and PW-1's evidence to find damage.
- The revising court emphasized the building's age (constructed prior to 1962), the lapse of time until filing in 1979, and the lack of evidence showing repairs by the landlord. The court considered it undesirable to base a finding of acts of waste solely on photographs when the landlord had not taken steps to have the building examined by an independent commissioner or to examine the photographer.
- Consequently, the court found that the evidence did not satisfactorily establish that the tenant caused the alleged damage and set aside the appellate finding on this ground, affirming the Rent Controller.

Holding and Implications

Holding: The revision petition is allowed. The court set aside the order of the Additional Chief Judge (appellate court) and affirmed the judgment of the Principal Rent Controller, Hyderabad. The order concluded with "No costs."

Implications:

Direct effect on the parties: The eviction order made by the lower appellate court was reversed; the tenant's eviction was not sustained on the grounds pleaded (wilful default, subletting, and acts of waste were not proved to the requisite standard).
On wilful default, the decision reinforces that a landlord's long-accepted practice of receiving rent at irregular intervals can preclude a later claim of wilful default for short-term arrears, absent clear contrary evidence.
On subletting, the decision reiterates that vesting of exclusive possession and consideration are important factual indicators of subletting; mere temporary use by third parties without evidence of exclusive possession or payment does not establish subletting.
On alleged damage, the decision underscores the need for probative evidence (inspection, examination of photographer, or a Commissioner's report) rather than reliance solely on photographs, particularly where the building is old and decay may be attributable to age or use.
The opinion does not purport to announce a new legal principle; it applies existing authorities and factual analysis to reverse the appellate court and affirm the trial court's findings.

No additional information was inferred; the summary is confined to the court's findings, evidence, and authorities as set out in the provided opinion.

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Mrs. A.J D'Souja v. Dr. C.K Govind Rao And Another

1. This revision petition is filed by the tenant against the order of the learned Additional Chief Judge. City Small Causes Court, Hyderabad, in RA No. 277 of 1985 allowing the appeal filed by the landlord against the judgment of the Principal Rent Controller, Hyderabad, in RC No. 501 of 1979.

2. The landlord filed an application for the eviction of the tenant under Sections 10(2)(i), 10(2)(ii)(a) and 10(2)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as ‘the Act’) from the premises bearing No. 3-2-10, Kachiguda, Hyderabad, on the ground that the tenant has committed wilful default in payment of rent, that she has sublet the demised premises to some unknown ladles without the consent or permission of the landlord and the tenant also caused damage to the premises. In support of his case the landlord was examined himself as PW-1 and Exs. A-1 to A-47 were marked. The tenant was examined herself as RW-1 and Exs. R-1 to R. 118 have been marked. On a consideration of the entire evidence in the case the learned Rent Controller came to the conclusion that the landlord has not been able to prove any of the grounds mentioned by him for eviction of the tenant and dismissed the petition. On appeal by the landlord, the learned Additional Chief Judge found that the tenant committed wilful default in payment of rent that she has sublet the demised premises to one Miss. Tressie Thomas and that the tenant also caused damage to the suit premises and therefore ordered eviction of the tenant from the suit premises. Hence this revision petition by the tenant.

3. The premises in question is situate at Kachiguda, Hyderabad and the same was let out to the petitioner-tenant in May, 1962. Originally the tenancy was contemplated for 11 months, but the same was continued from time to time. At the inception the rent was Rs. 166/- but the same has been enhanced and at the time of the filing of the eviction petition in the year 1979 the rent was Rs. 250/- per month. The petitioner-tenant was running a school since 1969 in the name of Baby Land K.G & UP School. There is no dispute about the relationship of landlord and tenant.

4. The learned counsel for the petitioner-tenant contended that the findings that have been arrived at by the lower appellate Court on the three counts are erroneous and they are contrary to the well established legal principles enunciated by the Supreme Court and the various High Courts.

5. The first ground that was taken by the landlord is on the ground of default from September, 1979 to November, 1979. The brother of the 1st petitioner-landlord (1st respondent herein) was examined as PW. 1. A perusal of the evidence of PW-1 showo that he was not having much acquaintance with regard to the payment of rents by the tenant. Admittedly the rents were being collected by one M. Kistaiah, father of PW-1. The tenant relied upon Exs. B-116 to B-118 to show that the rents were being paid or received once in two months and she contended that it cannot be termed as a wilful default. Exs. B-116 and B-117 show that the rent for the months of September and October, 1979 were paid at a late stage and the receipts were filed after the death of the said Kistaiab. The landlord's contention is that they were forged receipts. The Rent Controller, taking into consideration the late filing and the contentions raised by both the parties, compared the signature of M. Kistaiah on Exs. B-116 and B-117 alongwith the admitted signature of M. Kistaiah and came to the conclusion that they are not forged. The lower appellate Court has not made any attempt to compare those signatures with the other admitted signatures, but it came to the conclusion that even assuming for a moment that Exs. B-116 and B-117 are genuine receipts, still the rents for the months of September October, and November, 1979 were not paid on or before the rents fell due. Admittedly these two documents have not been sent to any hand writing expert for comparison of the signatures on them with the admitted signatures. If the contention of the landlord is that they are not genuine signatures of Kistaiah he ought to have taken steps to send them for an expert's opinion. However the Court is competent to compare the signatures and therefore when the trial Court compared the signatures and found that they are the signatures of Kistaiah it cannot be said that the Court failed in its duty to appreciate the evidence that was available on record. Late Kistaiah used to issue the receipts both in printed form as well as in hand-written or typed receipts and the same has been found in Exs. B-1 to B-118. These receipts show that the rent was being collected or paid once in two months after the due date. When the landlord is in the habit of collecting the rents at irregular intervals right from 1962 and when he has not made any complaints or issued any notice to the tenants about the belated payment of rents, it cannot be said that the amount that has been paid for two months at a time for the months of September and October, 1979 can be termed as wilful default. It may be termed as default on the part of the tenant. But the conduct exhibited by the landlord made the tenant to believe that she can pay the amount once in two months. Under these circumstances the non-payment of rent for two months cannot be treated as wilful default. If the tenant avoids to pay the rent for a continuous period or if he is a chronic defaulter inducing the landlord to issue a notice then we can accept the plea of the landlord that the tenant has committed wilful default. Whether the non-payment of rent amounts to default or wilful default depends upon the circumstances that have been brought out in each and every case.

6. While considering the non-payment of rent for a particular period, Ramaswamy, J. (as he then was) observed in Dr. T.S Kumar v. Smt. K. Lakshmi Bai (1) that non-payment of rent for a particular period cannot be construed to be wilful default. In that case the default is only for one month and the learned Judge found that by no stretch of imagination it can be construed to be wilful default on the part of the tenant. It has been observed by this Court that generally the landlords decline to receive the rents for two or three months with a view to make it a ground in the eviction petition. Default for one or two months just prior to the filing of the eviction petition has to be viewed very cautiously. The statutory right given to the tenant cannot lightly be taken away on account of the confusion created by the landlord in not receiving the rents just one or two months prior to the filing of the petition. The lower appellate Court has taken into consideration the fact of payment of the rent by the end of the succeeding month. If no period has been stipulated in the agreement, it has to be paid atleast by the end of the succeeding month. While considering a case that a monthly tenant is under an obligation to pay the rent from month to month, the Supreme Court in S.P Deshmukh v. Shah Nihal Chand Waghajibhai Gujarati (2) (1977) 3 SCC 515 : AIR 1977 SC 1985 observed as follows:

“Normally, a monthly tenant is under an obligation to pay the rent from month to month but this obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time. The evidence in the case, which was believed by the two tribunals of fact, shows that the tenant has been paying rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmur. The landlord never complained of any irregularity on the part of the tenant in paying rent and in-deed the tenant was not in arrears of a paise when the present proceedings for his eviction were commenced by the landlord”.

7. Applying the same ratio, as is already found by this Court, from the receipts that have been filed, the course of conduct that has been admitted by the landlord in receiving the rents once in two months and no notice having been issued by the landlord at any time complaining against the irregular payment of rent, it must be held that the tenant has not committed any wilful default and the landlord failed to prove that the tenant has committed any wilful default in payment of rent. It therefore follows that the finding of the lower appellate Court that the tenant has committed wilful default has to be set aside and that of the trial Court affirmed.

8. It is nextly contended by the learned counsel for the petitioner-tenant that the finding of the lower appellate Court with regard to subletting of the premises is not correct.

9. Section 10(2)(ii)(a) of the Act reads as follows:

“10(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied—

(i) xxxx

(ii) that the tenant has, in the Andhra area, after 23rd October 1945 and in the Telengana area after the commencement of the Hyderabad House Rent Controller order of 1353 Fasli, without the written consent of the landlord—

transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so,…..”

10. In cases of this nature, it is very difficult for the landlords to prove that the tenant has sub-let the demised premises. It is only from facts and circumstances that are emanated from the record, the Court can arrive at a reasonable conclusion whether the premises has been sublet by the tenant or not. The tenant who sub-let the premises generally will not come forward with the true facts.

11. A sub-lease is a demise by a lessee for a lesser term than he himself has as every lessee, however short his term may be, may make a sub-lease unless he is refrained by the contract of the tenancy from subletting. If the demise is for the whole term or for a period beyond the term, it amounts to assignment. If the lessee divests himself he becomes a stranger to the demised property and he has no right to have a covenant against subletting will restrain the assignment, but a mere covenant against subletting does not prohibit under-letting a part of the premises. The Courts have gone to the extent of holding that the mere act of letting other persons into possession by the tenant and permitting them to use the premises for their own purposes is not, so long as the tenant retains the legal possession himself, a breach of the covenant, Subba Rao, J. (as he then was) in a well considered judgment in G. Rangamannar v. Desu Rangaiah (3) AIR 1954 Madras 382 after reviewing the English cases cited before him observed;

“The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease, a right to exclusive therefore to create a lease or sub-lease a right to exclusive possession and enjoyment of the property should be conferred on another”.

12. Following the above principle, the Madras High Court in Petroleum Workers Union v. A Mohamed and Co. Madras (4) AIR 1967 Madras 33 on the facts of that case held that the petitioner tenant in that case never parted with the legal possession to the other sister Unions, even though they gave them permission to hold their meetings and to use the premises. This, the High Court held would not certainly amount to subletting in the law of the landlord and tenant.

13. At certain times the licence granted to a tenant also amounts to sublease. For example: if a person running a hotel in a rented premises allowes another person to use the pial in front of that hotel premises for running a pan-shop on receiving some amount, it amounts to sub-lease as the tenant has parted with the physical possession though not legal possession of the tenanted premises. The very fact that licence has been granted on receipt of some consideration shows that even though he has got legal possession he can terminate the lease at any point of time it can be said that it is an act of subletting. Every act of subletting has to be seen from the point of view whether any consideration has been passed in connection with the granting of licence or parting with possession and it is a matter that has to be decided on the facts of each and every case.

14. The Delhi High Court in Viswa Nath v. Chaman Lal Khauna (5) AIR 1975 Delhi 117 also held that mere user by other persons is no parting with possession so long as the tenant retain the legal possession himself or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession.

15. In Sachindra Nath Shah v. Santosh Kumar Bhattacharya. (6) 1986 Supp SCC 661 : AIR 1987 Supreme Court 411 the tenant allowed paying guests to stay in the rented premises. In that case some agreements were entered into by the tenant with the paying guests and the paying guests were paying lumpsum amount for providing food and also allowing them to stay. Under these circumstances, the Supreme Court held that it cannot be termed as subletting the premises. In this case, PW 1 could not definitely state as to the nature of the occupation made by the alleged sub-tenant. She stayed there for a short period. Ex. A-22 is the letter addressed by the tenant. It is mentioned in it that the tenant is asking the said teacher Tresses to vacate the demised house as the landlord is thinking that she is taking rent from the said Tresses. Ex. A23 is another letter wherein it is mentioned that the landlord came and asked the tenant whether the said Tresses has vacated or not. The recitals in these two letters show that it is only a temporary accommodation given to one school teacher probably when she is unable to get any alternative accommodation elsewhere and the tenant has not received any amount. Therefore, the finding of the lower appellate Court on this ground also has to be set aside.

16. The last limb of the argument of the learned counsel for the petitioner tenant that the building in question is an old one and it is in a dilapidated condition and the petitioner-tenant has not committed any acts of waste. It is the contention of the landlord that the tenant removed some shabad stones, the main gate was damaged by him and the building may be collapsed due to damage caused to it by the tenant. Though some photographs Exs. A24 to A35 are marked, the trial Court found that the landlord has not examined the photographer and the landlord has not taken steps for the appointment of a Commissioner to examine the suit building in order to show the damages caused by the tenant. The lower appellate Court found basing on the photographs and the evidence of PW 1 that the landlord has made out a case that the tenant has not kept the building in good condition which will impair the value and utility of the building. The building is admittedly an old building constructed prior to the year 1962 The eviction petition was filed in the year 1979. By efflux of time there is every possibility of the peeling of the walls by rains and no material is placed before the Court to show whether any repairs have been effected to the building by the landlord. When there are two rival contentions it is always desirable to appoint a Commissioner to assess the physical features of the building and to find out whether damage is caused by the tenant or not. Mere filing of photographs without examining the photographer is not sufficient to hold that the building has been damaged particularly when it is an old building having Madras terrace. PW 1 stated that the parents of the children came and damaged the main gate by breaking it and the entire building consists of jack and tiles. As the building is an old building and it is being used for running a Kindergarten school and as no repairs have been effected ever since it was let out, there is every possibility of the building to some extent got damaged. But it cannot be attributed to the tenant that the building was damaged due to the acts of waste committed by the tenant. The order of the learned Additional Chief Judge is set aside and that of the learned Principal Rent Controller, Hyderabad, affirmed.

17. The revision petition is accordingly allowed.

18. No costs.

Mrs. A.J D'Souja v. Dr. C.K Govind Rao And Another

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Landlord's Arguments

Tenant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mrs. A.J D'Souja v. Dr. C.K Govind Rao And Another

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