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Case Number

102 of 1974

Attorney(S)

M.P.Ugle
Aziz Ahmed Khan

Judges

Mr. Justice Punnayya

Acts

section 15 (5; of the east punjab act. Like section 15 (5) of the east punjab act, section 22
eviction) control act, 1960 (hereinafter referred to as 'the act') since section 22
101 of 1966. (25) Section 10 (2) (i)

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

This revision petition was filed by the landlady against the judgment of the Subordinate Judge, Nizamabad, in Rent Appeal No. 15 of 1972, which confirmed the Rent Controller's order in R.C. No. 11 of 1968 dismissing the landlady's eviction petition. The landlady (petitioner) sought eviction of the tenant (respondent) from premises No. 4-3-244 (new), Old Market, Gandhi Chowk, Nizamabad, on two grounds: (a) wilful default in payment of rent and (b) personal requirement of the premises for accommodating the petitioner's sister and her children.

Key procedural points recorded in the opinion:

The landlady's eviction petition was R.C. No. 11 of 1968. The subordinate judge's order was challenged in Rent Appeal No. 15 of 1972.
Prior applications: the respondent filed R.G. No. 79 of 1966 under section 8 of the Act for permission to deposit rents into court; an earlier eviction petition R.G. No. 101 of 1966 was dismissed on 22nd December 1967 for being filed without notice of termination of tenancy under section 106 of the Transfer of Property Act.
After dismissal of R.G. No. 101 of 1966, the petitioner issued notice terminating the tenancy on 8th January 1968 and filed the present eviction petition on 23rd February 1968.

Legal Issues Presented

Whether the respondent (tenant) committed wilful default in payment of rent such as to justify eviction.
Whether the petitioner's asserted personal requirement (to provide accommodation to her sister and her children) is bona fide and therefore a valid ground for eviction.
Whether the High Court, in revision under section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, is entitled to examine the legality or propriety of concurrent findings of fact by the Rent Controller and the Appellate Authority (by analogy to section 15(5) of the East Punjab Urban Rent Restriction Act and the Supreme Court's ruling in Moti Ram v. Suraj Bhan).
Whether acceptance by the landlord of rents paid at irregular intervals can preclude a finding of wilful default by the tenant.

Arguments of the Parties

Petitioner's Arguments (Landlady)

The respondent agreed by rent agreement to pay Rs. 38 per month but failed to pay monthly; instead the respondent remitted rent irregularly (once in two, three, or six months) and specifically remitted the rents for January and February 1966 by money order, evidencing wilful default.
The portion of house occupied by the petitioner is small; her sister and sister's children live with her and face hardship from lack of accommodation, so the petitioner requires the respondent's premises for residential purposes (personal requirement).
Reliance on precedents: Parasuramaiah v. Lakshmamma to support the bona fides of requirement; Vasudeva v. Misra Bai to support the proposition that irregular payment and acceptance by landlord does not absolve tenant from being a wilful defaulter.

Respondent's Arguments (Tenant)

Both the Rent Controller and the Appellate Authority made concurrent findings that the respondent had not committed wilful default and that the petitioner's personal requirement was not bona fide; those concurrent findings should not be interfered with.
The petitioner's sister and children have residential accommodation in the same town and the sister's husband is alive and employed; they are not dependents of the petitioner, so the requirement is not bona fide.
By the date of the present eviction petition the respondent had deposited rents in court and the petitioner had withdrawn those deposits, so there were no arrears on the date of the petition; if no amount was due on the date of eviction petition, eviction on the basis of past irregular payments is not maintainable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moti Ram v. Suraj Bhan (Supreme Court)	Held that the revisional power under section 15(5) of the East Punjab Urban Rent Restriction Act is wider than section 115 CPC and allows the High Court to examine legality and propriety of orders on revision.	The court applied this ruling by analogy: section 22 of the Andhra Pradesh Act is similar to section 15(5) and therefore the High Court is entitled to examine legality or propriety of concurrent findings of the Rent Controller and the Appellate Authority.
Parasuramaiah v. Lakshmamma (Division Bench of this Court)	Relied upon by the petitioner to support the contention that the petitioner's requirement for accommodation could be bona fide. (The opinion does not detail the exact rule from this decision beyond reliance.)	The court examined the facts in this case and concluded that the Parasuramaiah v. Lakshmamma decision did not assist the petitioner, because there was ample evidence that the petitioner's sister had residential accommodation and other houses and was not dependent on the petitioner.
Vasudeva v. Misra Bai (Division Bench of this Court)	Held that payment or tender of rent as agreed is a condition precedent to protection under the Act; there cannot be an agreement to pay at irregular intervals unless such an agreement is proved; conscious violation or supine indifference amounts to wilful default; acceptance by landlord of irregular payments does not necessarily absolve tenant from wilful default.	The court discussed this authority at length and treated it as supporting the proposition that tenants are not entitled to pay at irregular intervals and then claim non-wilful default because the landlord accepted payments. The quoted passage from this decision was used to frame the legal standard.
Ramamthnamma v. R. Panaiah (Sherfuddin Ahmed, J.)	Taken the view that long-standing practice of payment at irregular intervals accepted by the landlord without protest can mean the tenant is not a wilful defaulter.	The court noted this contrary single-judge view but observed that the Division Bench in Vasudeva v. Misra Bai did not accept it. The court considered both views in assessing the factual matrix before concluding that the respondent was a wilful defaulter on the facts of this case.

Court's Reasoning and Analysis

Jurisdiction to examine concurrent findings:

The court began by addressing whether it could re-examine concurrent findings of fact made by the Rent Controller and the Appellate Authority. Relying on the Supreme Court's decision in Moti Ram v. Suraj Bhan concerning section 15(5) of the East Punjab Urban Rent Restriction Act, the court found that section 22 of the Andhra Pradesh Act is similar in conferring a revisional jurisdiction on the High Court. Therefore, the High Court may examine the legality and propriety of findings in revision after calling for and examining the records; the respondent's contention that the High Court could not revisit concurrent findings was rejected.

Personal requirement:

Both tribunals had found the petitioner's claimed personal requirement was not bona fide because the petitioner's sister (and her husband) owned four houses in Phulong, including a residential house in which they resided, and they were employed and not dependent on the petitioner. The High Court found ample evidence in the record to support these findings and therefore held that the requirement was not bona fide. The court expressly stated that the decision in Parasuramaiah v. Lakshmamma did not assist the petitioner on these facts.

Wilful default:

The court examined conflicting authorities on whether long-continued acceptance of irregular rent payments by a landlord precludes a finding of wilful default:

A single-judge view in Ramamthnamma v. R. Panaiah suggested that acceptance of irregular payments over a long time without protest could prevent a finding of wilful default.
The Division Bench in Vasudeva v. Misra Bai rejected that view and held that the tenant must pay rent as agreed; a conscious violation or supine indifference amounts to wilful default, and acceptance by the landlord does not necessarily absolve the tenant.

Applying these principles to the facts: the court examined the specific timeline regarding January and February rent (the respondent tendered these rents late; the petitioner refused to receive the money order remittances; the respondent subsequently filed R.G. No. 79 of 1966 seeking permission to deposit rents in court and thereafter deposited rents in court). The court analyzed statutory timing under section 10(2)(i) to conclude that the rent for January should have been paid by the end of February (hence there was default for January), while the payment in March covering both months meant there was no separate default for February. Thus the court concluded there was one month's default.

The court then applied the legal standard that "even one month's default, if not accidental or unavoidable but the result of deliberate negligence or indifference, can form valid ground for eviction." It found that the respondent's habitual practice of paying at irregular intervals, his conduct prior to depositing rents in court, and his failure to pay monthly as per the rental agreement manifested supine indifference. The fact that rents were later deposited in court and withdrawn by the petitioner did not waive the petitioner's claim or exonerate the tenant; the conduct prior to court deposit is the relevant criterion. On this basis the court concluded that the tribunals' findings that there was no wilful default were incorrect.

Holding and Implications

Holding:

The court's core rulings were:

Revision allowed.
Eviction ordered. The petition for eviction on the ground of wilful default was allowed with costs throughout.
Time for vacating the premises: three months from the date of the order.

Specific outcomes on contested issues:

The finding of both the Rent Controller and the Appellate Authority that the petitioner's personal requirement was not bona fide was upheld by the High Court as proper and legal.
The concurrent findings by those tribunals that the respondent was not a wilful defaulter were reversed by the High Court. The High Court concluded the respondent committed wilful default (one month's default for January), and that this supported eviction.

Implications:

The direct effect of the decision is the eviction of the respondent from the premises, with three months' time to vacate and an award of costs to the petitioner. The opinion does not purport to lay down a broader new precedent beyond applying and distinguishing earlier authorities (the court relied on existing case law and statutory provisions to resolve the dispute on the facts). In particular, the court applied established principles about the High Court's revisional jurisdiction (by analogy to Moti Ram v. Suraj Bhan) and about the circumstances in which irregular payment practices may or may not amount to wilful default (considering the conflicting authorities and the factual matrix).

Note: This summary is strictly based on the information contained in the provided opinion and does not add or infer facts beyond what the opinion itself states.

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Fatima Bi v. Mohd. Akbar Hussain

(1) This petition is directed against the judgment passed by the subordinate judge, nizamabad in rent appeal no. 15 of 1972 confirming the order passed by the rent controller in r. C. No. 11 of 1968 dismissing the eviction petition. The landlady is the petitioner and the tenant is the respondent in this petition.

(2) The landlady of the premises no. 4 - 3 - 244 (new) situated at old market, gandhi chowk, nizamabad, seeking eviction of the tenant (who is the respondent in this revision petition) on the grounds of wilful default and personal requirement filed the eviction petition r. C. No. 11 of 1968.

(3) Regarding the wilful default, the petitioner contends that the respondent entered into rent agreement with her agreeing to pay a monthly rental of rs. 38 and he failed to pay the rents every month and was paying rents once in two months or three months or six months as he pleases and he remitted the rent for the months of january and february, 1966 through money order and thus the respondent committed wilful default in the payment of rents regularly.

(4) Regarding the personal requirement the petitioner contends that the portion of a house in which she is residing is very small one and her sister and sister's children are also living with her and hence they are subjecting themselves to hardship and inconvenience for want of sufficient accommodation and she, therefore, requires the premises in the occupation of the respondent for their residential purpose.

(5) The petitioner gave evidence as p. W. 1. She also examined her relation who is acquainted with her family affairs as p. W. 2.

(6) As against this evidence the respondent examined himself as r. W. 4. He also examined two bill collectors as r. Ws. 2 and 3 and a person who is acquainted with the respondent and his house as r. W. 1.

(7) The rent controller held that the petitioner's sister and her husband are having four houses at phulong in the same town and they are residing in one of those houses and they are not dependent upon the petitioner and hence the requirement is not bona fide.

(8) Regarding the wilful default, the rent vontroller held that though the rent was payable every month, the petitioner was receiving once in six months and even one year as deposed by the respondent and that there was deposit of two months rent with the petitioner and so he has been depositing rents once in two months and the petitioner has been accepting it and hence it does not amount to wilful default. So holding, he dismissed the petition.

(9) Aggrieved with the said findings, the petitioner preferred rent appeal before the appellate authority.

(10) The appellate authority also held that the rent was being paid once in two or three months and it was being accepted by the petitioner and hence the question of wilful default does not arise. He also held that the rent due was sent by money order, but was refused by the petitioner and hence the respondent cannot be deemed to have committed wilful default and thus he agreed with the rent controller on this finding. Even with regard to the question of personal requirement the appellate authority held that when the petitioner's sister and her children are not the dependents of the petitioner and when the husband of her sister is alive and when they own a residential house in phulong locality, the requirement cannot be said to be bona fide and so holding, he agreed with the rent controller on this question.

(11) The learned counsel for the petitioner now contends that the petitioner's requirement of the portion occupied by the respondent for providing accommodation to her sister and her children should be treated as bona fide requirement. In support of this contention, he relied upon the decision of the division bench of this court in parasuramaiah v. Lakshmamma.

(12) He also contended that the respondent is not entitled to pay the rents once in two months or six months or at irregular intervals and the acceptance by the petitioner of the rents paid by the respondent at irregular intervals cannot exonerate the tenant from being held as wilful defaulter. In support of this contention, he relied upon a decision of the division bench of this court in vasudeva v. Misra bai.

(13) The learned counsel for the respondent, on the other hand, contends that the concurrent findings of both the tribunals cannot be interfered with. He further contends that the requirement of additional accommodation for her sister and her children cannot be deemed to be bona fide when her sister and her children are having residential accommodation in the same town and when her sister and children cannot be deemed to be her dependents.

(14) He also contends that by the date of the eviction petition the tenant did not fall in arrears of rent even for a single month and hence the tenant cannot be deemed to be a wilful defaulter.

(15) The question whether the high court is entitled to examine the legality or the propriety of the concurrent findings given by both the rent controller as well as the appellate authority was examined by the supreme court with reference to section 15 (5) of the east punjab urban rent restriction act in moti ram v. Suraj bhan, and held that the revisional power conferred upon the high court under section 15 (5) of the said act is wider than that conferred by section 115 of the civil procedure code. Under section 15 (5) of the east punjab act the high court has jurisdiction to examine the legality or the propriety of the order under revision. Hence, the propriety or legality of the finding as to the requirement of the landlord under section 13 (3) (a) (iii) can be examined under section 15 (5). This ruling is applicable in all fours to the proceedings under the andhra pradesh buildings (lease, rent and eviction) control act, 1960 (hereinafter referred to as 'the act') since section 22 of the andhra pradesh act is also similar to section 15 (5; of the east punjab act. Like section 15 (5) of the east punjab act, section 22 of the andhra pradesh act confers on the high court the right to satisfy itself as to the legality, regularity or propriety after calling for and examining the records when the revision petition was filed. Hence the contention of the learned counsel for the respondent that this court cannot examine the legality or the propriety of the concurrent finding given by both the tribunals is unsustainable.

(16) Regarding the personal requirement, both the tribunals held that the petitioner's sister and her children are having residential house in the same town besides three other houses and her sister's husband is alive and both her sister as well as her husband are employees and hence the requirement of additional accommodation for her sister and her family is not bona fide.

(17) There is ample evidence to show that that the petitioner's sister is having a residential house besides three other houses in the same town and her sister as well as her husband are employees and they are not the dependents of the petitioner. In such a case the requirement of the petitioner for additional accommodation for the purpose of providing accommodation to her sister and her family who are having four houses including one residential house in which they are actually residing cannot be said to be a bona fide requirement. Hence the decision in parasuramiah v. Lakshmamma, on which the petitioner's counsel relies does not help him. I, therefore, hold that the finding given by both the tribunals on this aspect is proper and legal.

(18) Regarding the question whether the respondent committed wilful default, both the tribunals held that the respondent did not commit any wilful default since the petitioner was collecting rents paid by the respondent at irregular intervals ever since 1964 and the petitioner never raised objection or protest against such payments. The learned counsel for the petitioner contends that the respondent is not entitled to pay the rents once in two months or six months or at irregular intervals and the acceptance by the petitioner of the rents paid by the respondent at irregular intervals cannot absolve him of being held as wilful defaulter. In support of this contention he relied upon the decision of a division bench of this court in vasudeva v. Misra bai.

(19) It is not in dispute that the respondent has been paying the rents once in two months or three months or six months and the petitioner was receiving the rents paid by the respondent at irregular intervals. Both the respondent as well as the petitioner admitted these facts in their evidence. In v. Ramamthnamma v. R. Panaiah, sherfuddin ahmed, j. , took the view that when the landlord received the rents paid by the tenant at irregular intervals without demur or protest and the practice of payment of rents by the tenant at irregular intervals and the receipt of the same by the landlord without any protest or objection exist for a long time, the tenant cannot be held to have committed wilful default. But the division bench in vasudeva v. Misra bai, did not accept this view and held as follows: -

"the payment or the tender of the rent by the tenant, as agreed to between him and the landlord is a condition precedent for enabling him to avail himself of the protection afforded under the act and if he commits a default, he will be deprived of that protection. There cannot be an agreement to pay the rent at irregular intervals, unless there is proved to be one for showing that the default is not a wilful one. If there is a conscious violation of the obligation to pay the rent and if there is a supine indifference exhibited on the part of the tenant in the matter of payment of rent as agreed to, that constitutes wilful default."

It is not the duty of the landlord to go after the tenant to the collection of the rents due so as to enable the tenant to rely upon the circumstances of the landlord's not collecting the same in due time as one entitling him to characterise the default as not a wilful one. "

(20) It is, therefore, clear that the tenant is not entitled to pay the rent at irregular intervals contrary to rental agreement and he is not entitled to take the plea that he is not a wilful defaulter as the landlord has been accepting the rents paid by him at irregular intervals without any protest or demur.

(21) In this case, the respondent tendered the rents for the months of january and february, 1956 in march, 1966. But the petitioner refused to receive it and then the respondent remitted the same through money order. Even then the petitioner refused to receive it. Thereafter the respondent filed a petition r. G. No. 79 of 1966 under section 8 of the act for permission to deposit the rents into court. Then the petitioner filed eviction petition r. G. No. 101 of 1966 on 2nd september, 1966 for eviction of the respondent on the ground of wilful default and personal requirement. After r. G. No. 79 of 1966 was filed by the respondent, he (respondent) was depositing the rents in the court. The eviction petition r. G. No. 101 of 1966 was dismissed on 22nd december, 1967 on the ground that it was filed without notice of termination of tenancy under section 106 of the transfer of property act. Hence the petitioner issued notice of termination of the tenancy to the respondent on 8th january, 1968 and thereafter filed the present eviction petition on 23rd february, 1968 on the ground of wilful default and personal requirement.

(22) From the above facts, it is clear that the petitioner filed the present eviction petition on the ground that the respondent committed wilful default in payment of rent for the months of january and february, 1966.

(23) The learned counsel for the respondent contends that by the date of the present eviction petition,the respondent deposited the rents in the court and the petitioner withdrew the rents and hence the eviction petition on the ground of wilful default is not maintainable. According to him, if no amount was due on the date of the eviction petition, the tenant cannot suffer eviction on the mere ground that he was irregular in payment of rents and he cannot be visited with any penalty for his past acts.

(24) The petitioner refused to receive the money order under which the rents for the months of january and february, 1966 were remitted on the ground that the respondent was not paying rents every month as per the rental agreement. Then the petitioner issued notice terminating the tenancy. This notice of terminating the tenancy was issued after the dismissal of r. G. No. 101 of 1966.

(25) Section 10 (2) (i) provides that the tenant has to pay or tender the rent due by him within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last date of the month next following that for which the rent is payable. It is, therefore, clear that the tenant ought to have paid the rent of january by the end of february, since the date for the payment of rent was not fixed. Thus there is default for the month of january. Regarding the default for the month of february, i have to hold that there is no default, as it was remitted in the month of march, itself along with the rent for the month of january. Thus it is clear that there is one month s default in the payment of rent.

(26) Even one month's default, if it not accidental or unavoidable but it is the result of deliberate negligence or indifference, can form valid ground for eviction. If the tenant does not offer any explanation as to the circumstances which prevented him from paying the rent within the time prescribed under law and when the tenant claims the default as of right or practice, the default should be treated as wilful. The very conduct of the tenant in not paying the rents every month as per the terms of the rental agreement but in paying rents at irregular intervals at his convenience clearly establishes his supine indifference and hence the tenant under such circumstances should necessarily be held as wilful defaulter. It is true that the tenant herein was depositing rents in the court after r. C. No. 79 of 1966, was filed under section 8 of the act and the petitioner had withdrawn the rents so deposited and as a result of withdrawal of rents by the petitioner. There were no arrears by the date of the present eviction petition. But the withdrawal by the petitioner of rents so deposited in the rent control court does not operate any waiver of his claim and the tenant cannot claim that he cannot be taken as a defaulter on the ground that the petitioner had withdrawn the arrears deposited in the court. Such a plea is untenable, as it is the conduct of the tenant in the payment of rents prior to the deposit of rents in the court that is relevant in judging whether he is a wilful defaulter or not.

(27) When the respondent failed to pay the rents to the petitioner as per the terms of the rental agreement, the deposit of rents in the court even before the eviction petition was filed and the withdrawal of the rents so deposited by the petitioner does not exonerate the respondent from being held as a wilful defaulter.

(28) What was the conduct of the tenant prior to the deposit of rents in the court ? prior to the deposit of rents in court, he was not paying rents as per the terms of the rental agreement. He never paid every month. Hence the petitioner refused to receive the rents sent by money order on the ground that he was not paying the rents as per the terms of the rental agreement. Under these circumstances, the argument that there were no arrears by the date of eviction petition and as such the eviction petition is not maintainable is unacceptable. The eviction petition for the wilful default committed by the respondent for the month of january is undoubtedly maintainable. Thus, i hold that the tenant - respondent committed wilful default and the finding given by the rent controller as well as the appellate authority on this aspect is incorrect, improper and illegal.

(29) In view of my finding that the respondent committed wilful default, i hold that the petitioner is entitled to evict the respondent and her petition for eviction of the respondent is allowed with costs throughout. Time for vacating the premises, three months from today. Revision allowed ; eviction ordered.

Fatima Bi v. Mohd. Akbar Hussain

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Landlady)

Respondent's Arguments (Tenant)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Fatima Bi v. Mohd. Akbar Hussain

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