B. K. SOMASEKHARA, J.

( 1 ) ALL these matters are between the same parties and have been the offshoots

of certain common decisions between them by the trial Court and the first appellate

Court, filed under various provisions of the Andhra Pradesh Buildings (Lease, Rent

and Eviction) Control Act, 1960, hereinafter referred to as the Act. Actually they are

between one P. Rajanna said to be a tenant in the demised premises and the owner

Smt. K. Lalitha Reddy and her husband K. Venkataraniana Reddy who appears to be

managing the transactions of his wife in relation to the premises. The proceedings of

the trial Court (Rent Controller-cum-District Munsif, Madanapalle) and the appellate

Court (Sub-Judge, Madanapalle) which led to the present cases in this Court are

tabulated as hereunder in Table-A. The following Table-B indicates the details and

particulars of the revision petitions filed in this Court, of each of the parties as

against the decisions of the Courts below:-- As all the proceedings supra project

from common orders-judgments of the trial Court and the appellate Court involving

common questions of law and facts between the same parties, having heard them

together, they are being disposed of by means of this common Judgment.

( 2 ) THE command of the convenience prompts us to refer to Smt. K. Lalitha Reddy

and her husband K. Venkataramana Reddy as petitioners 1 and 2 and P. Rajanna, as

respondent, as they were styled in the eviction petition -- R. C. C. 3/85 on the file of

the Rent Controller-cum-District Munsif, Madanapalle.

( 3 ) PETITIONER No. 1 is the wife of petitioner No. 2. Petitioner No. 1 is the owner

of the demised premises which is referred to as the schedule premises (non-

residential building) bearing H. No. D. 14/137, T. M. Road, Madanapalle Municipality.

( 4 ) THE respondent claiming to be a tenant in the schedule premises at an agreed

rent of Rs. 250/- per mensem alleged that he was paying the rent personally and

also by way of demand drafts or through the messengers till March, 1983 and when

he sent the rent for the month of April, 1983 by Money Order to petitioner No. 2, it

was refused and returned back to him. Therefore, he sent a notice to petitioner No.

2 which was replied by him demanding higher rate of rent. He sent Rs. 500/- by

money order covering the rent for the months of May and June, 1983 to petitioner

No. 2 who refused to receive the same. Therefore, he had to file a petition under

Section 8 (5) of the Act, seeking permission of the Court to deposit the rent every

month at the rate of Rs. 250/ -. Petitioner No. 2 resisted the petition actually

denying the respondent to be the tenant in the premises, denying the rent to be

paid at Rs. 250/ -per mensem and instead, pleaded that one Pulla Reddy was a

tenant in the premises and the respondent and one Venkata Reddy were unlawfully

inducted into the schedule premises, that they proposed to pay a rental of Rs. 250/-

per mensem and to deduct Rs. 100/-every month towards the repair charges of Rs.

15,000/- which was said to have been spent by them on the schedule premises, that

he demanded Rs. 1,000/- per mensem towards rent for which they were not

agreeable, Venkata Reddy did not continue in the premises and the respondent was

sending Rs. 250/- per mensem to petitioner No. 2 under the circumstances, he

committed default in paying rent consistently and his petition may be dismissed. In

the meanwhile, petitioners filed the eviction petition against the respondent under

Section 10 (2) (a) (ii) (b), (c) and (iii) of the Act alleging that he committed willful

default in paying the rent, he sub-let the premises without the consent of the

petitioner, he committed the acts of waste and damage to the schedule premises by

opening a pit as a sump storing the drums by the side of the wall and that he used

the premises for a different purpose than the one for which it was let out. The

respondent resisted the eviction petition by denying the alleged willful default on his

part although he has prepared to pay the rent as agreed and sent the rent by M. O.

and filed the petition for permission to deposit the rent, he denied the sub-lease, the

use of the premises for a purpose different from the one for which it was let out and

alleged acts of damage and waste to the schedule premises.

( 5 ) BOTH the matters were tried together by the learned Rent Controller and

common evidence was recorded wherein petitioner No. 2 examined himself as P. W.

1 and a witness as per P. W. 2 and the respondent examined himself as R. W. 1 and

six witnesses as per R. Ws. 2 to 6 respectively. No documents were got marked by

the petitioners whereas, the respondent got Exs. B-1 to B-27 marked by way of

documentary evidence. Affording opportunities to both the sides to argue and on

the basis of the materials before him, the learned Rent Controller held that the

agreed rate of rent is Rs. 250/- per mensem, there was no willful default, that the

respondent had sub-let the premises and committed acts of waste and damage to

the building and used it for a purpose different from the one for which it was let out

and subsequently allowed the petition of the respondent for permission to deposit

the rent by 15th of every month and further, allowed the eviction petition on the

proved grounds stated above with two months time to the respondent to vacate the

premises. Thus the common order passed in the two proceedings by the learned

Rent Controller came to be challenged by both the parties before the learned Sub-

Judge, Madanapalle as detailed above (in Table-A ). An application was filed to

adduce additional evidence by the petitioners in the appellate Court which came to

be allowed whereby petitioner No. 2 was recalled and examined and Exs. A 1 to A 5

came to be marked on their behalf. After hearing both the sides and on the

assessment of the materials before him including the impugned judgment of the

learned Rent Controller, the learned Sub-Judge fixed the rent at Rs. 500/ - per

mensem, confirmed the finding that there was no willful default on the part of the

respondent in paying the rent and confirmed the findings of the learned Rent

Controller on the grounds of eviction and disposed of the appeals of the respective

parties as stated above granting fifteen days time to the respondent to vacate the

schedule premises.

( 6 ) THE respondent in his revision petition filed a miscellaneous petition for staying

the operation of the judgment of the learned Sub--Judge and it was ordered by this

Court with a stipulation that he should pay or deposit all the arrears of rent within

four weeks from 9-7-1993 the date of the order, which came to be extended by two

weeks on 4-9-93. In the meanwhile, the petitioners had filed E. P. 6/93 on the file of

the Principal District Munsif, Madanapalle to execute the order of eviction passed in

their favour and it was resisted by the respondent on the ground that he had

obtained the order of stay from this Court as above and after hearing both the sides

the learned Principal District Munsif came to the conclusion that since the

respondent had not fulfilled the condition imposed in the order of stay passed by

this Court, overruled his objections on 9-2-94 and directed the execution to proceed

and admittedly, by executing the order of eviction, the respondent has been evicted

from the schedule premises and petitioner No. 1 has been put into possession of the

same. The respondent has challenged the order of the learned Principal District

Munsif dated 9-2-94. Mr. Narayana, the learned Advocate for the respondent has

submitted that he has filed an application under Section 144 of C. P. C. to restore

possession of the schedule premises to the respondent in case he ultimately

succeeds in his revision petitions in this Court.

( 7 ) NUMBER of formal grounds have been raised by both the parties in their

respective revision petitions. While they were presented to this Court during the

arguments they have been subjected to the definite contentions which may be

conveniently recorded for consideration.

( 8 ) MR. Sundar Rajan the learned advocate for the petitioners has raised the

following contentions: (1) (a) The finding of the learned Rent Controller regarding

the rate of rent at Rs. 250/- per mensem and also the finding of the learned Sub-

Judge about the rate of rent at Rs. 500/- per mensem are opposed to facts, the

evidence in the case and the law operating upon the facts and circumstances of the

case. (b) The agreed rate of rent ought to have been fixed at Rs. 1,000/- per

mensem. (c) The finding of both the Courts below that there was no willful default

in payment of rent by the respondent is totally opposed to the admitted facts and

the evidence in the case and also the law operating in the case and that, therefore,

the finding of the trial Court in regard to the rate of rent and regarding the ground

of eviction of willful default in payment of rent are liable to be set aside. (2) The

concurrent findings" of fact regarding the grounds of eviction by the Courts below is

based on evidence in the case and cannot be interfered with by this Court in a

revision petition. In addition thereto, the respondent was liable to be evicted even

on the ground of willful default in payment of rent and as a whole, he cannot

succeed in his revision on any ground. (3) The order of the learned Principal District

Munsif in the execution petition is totally justified since patently, the respondent had

not fulfilled the stipulation of the order passed by this Court in C. M. P. 10666/93 dt.

9-7-1993. (4) The order of eviction of the Courts below and the execution of the

same by the learned Principal District Munsif is totally justified and deserved to be

confirmed. (5) The petitioner is not entitled for restoration of the possession of the

schedule premises even if he succeeds in this Court in his revision petitions as there

is no provision in the Act or in any law similar to S. 144 of C. P. C. which cannot be

applied to the proceedings under the Act.

( 9 ) THE contentions of Mr. P. Narayana, the learned advocate for the respondent

are these: (1) The eviction petition is not maintainable since the petitioners denied

him to be the tenant in the schedule premises since beginning and since a petition

for eviction would lie only when there is relationship of landlord and tenant between

the parties. Thus, the eviction petition against the respondent ought to have been

dismissed in limine for want of jurisdiction to the Court to entertain the petition. (2)

The concurrent findings of fact recorded by the Courts below regarding the willful

default cannot be interfered with in a revision petition. (3) The findings of both the

Courts below regarding the remaining grounds of eviction under Section 10 (2) (ii)

(a) (b) and (iii) of the Act are against the evidence or even, without sufficient

evidence and, therefore, the impugned order of eviction against the respondent is

illegal and liable to be set aside. (4) The order of the execution Court in E. P. is

illegal and against the admitted facts and at any rate (sic) and therefore, liable to be

set aside. (5) The respondent has been dispossessed of the schedule premises by

executing an illegal order of eviction and an illegal order passed by the executing

Court and, therefore, he is entitled to be restored to the possession of the same

when he succeeds in his revision petitions in this Court.

( 10 ) THE attack of the respondent regarding the jurisdiction of the Rent Controller

to entertain the eviction petition was in a way justified due to the conduct of the

petitioners since inception. But a deep look into such a controversy between the

parties beat back such a contention without any success. The respondent claimed to

be a tenant in schedule premises and when petitioner No. 2 refused to receive the

rent sent by him by money order admittedly, had to approach the Court seeking

permission to deposit the rent for three months amounting to Rs. 750/- and to

continue the deposit of rent at the rate of Rs. 250/- per mensem. The petitioners

vociferously denied the respondent to be the tenant in the schedule premises much

less with a stipulation to pay the rent at the rate of Rs. 250/- per mensem and on

the other hand put up a strategic defence with a camouflage admitting his

possession and agreeing to remain as a tenant through one Pulla Reddy said to be a

former tenant with certain proposals by him and counter-proposals by petitioner No.

2 without reaching any finality. The extent to which the petition of the respondent

was resisted was that he should not be given permission to deposit the rent. If that

was the only conduct of the petitioners in treating the respondent in the schedule

premises as such, no petition for eviction under Section 10 of the Act could have

been maintained. But resiling from such a strategy, the petitioners adopted a

different strategy by filing the eviction petition under Section 10 of the Act on the

ground of eviction stated above behaving as if they had to accept him as a tenant

under certain circumstances although they did not agree for the rate of rent or

payment of rent at Rs. 250/ - per mensem and actually claimed it to be Rs. 1000/-

per mensem. In that also, the pleas are not consistent. On a careful reading of the

pleas and the allegations made in the eviction petition, it is apparent that the

petitioners have conceded the respondent to be a tenant in the schedule premises

and sought for eviction on the clear grounds of eviction supra. It is true that the

jurisdictional facts are to be assessed first by a Court or the Rent Controller before

exercising the jurisdiction. The law is beyond doubt that unless the relationship of

landlord and tenant exists between the parties, a petition for eviction under Section

10 of the Act would not lie nor a Court or the Rent Controller dealing with such a

petition can assume jurisdiction either to entertain the petition or to give the

remedies claimed therein. Such jurisdictional facts are to be gathered not only from

the pleadings, but also from the evidence and the totality of the facts and

circumstances in a particular case. An isolated statement of fact or a conduct of a

party to a petition under Section 10 of the Act, cannot determine the question of

jurisdiction or otherwise the presumed jurisdiction of a Court or the Rent Controller

would become a fallacy or a myth or a play ting to an individual and not as a part of

the rule of law. The contention of Mr. Narayana, the learned Advocate for the

respondent that the parties cannot confer jurisdiction on the Court or the Rent

Controller needs no examination or support from any precedent or authority. At the

same time, it must be remembered that a party to a litigation cannot snatch away

the jurisdiction by making statements torn out of the context or the totality of the

circumstances to cater his whims and fancies. The respondent himself approached

the Rent Controller first with a definite plea that he is a tenant in the schedule

premises under the petitioners and, therefore, sought permission to deposit the rent

as he was unsuccessful in tendering or actually paying the same to them. He

pursued the same stand even in the counter to the eviction petition. He did not

divert from such a stand even in his evidence when he stood to test on oath in the

witness-box. Petitioner No. 2 as P. W. 1 was also made to admit it in the cross-

examination although with some conditional expressions. The fact that petitioners

sought to evict the respondent from the schedule premises under Section 10 of the

Act on certain grounds therein, reinforced the jurisdictional facts relating to the

status of the parties as landlord and tenant and the vinculum juris between them to

produce the result of contract of tenancy or lease so as to invoke the jurisdiction of

the Rent Controller under the Act to examine the controversies between them and

to render a decision on them after holding an enquiry. Significantly enough such a

contention of jurisdiction appears to be not even pursued and thus no point for

determination was either raised or was determined by the trial Court. Such a

contention was also not pursued before the learned Sub-Judge in the appeal by the

respondent. Therefore, but for the petitioners conduct as above initiated at the

beginning, no such question of jurisdiction for the Court regarding the relationship of

landlord and tenant between the parties neither existed nor continued at any stage

after the eviction petition was filed, much less survived before this Court for

determination. Apart from lack of merit in the contention on facts and

circumstances, the law appears to be against it. The "lease law" squarely bunks the

par-ties into the vinculum juris of landlord and tenant. lease is not defined in the

Act, whereas landlord and tenant pegs into the definitive provisions of Sections 2

(vi) and 2 (ix) of the Act as hereunder: Section 2 (vi): landlord means the owner of

a building and includes a person who is receiving or is entitled to receive the rent of

a building whether on his own account or on behalf of another person or on behalf

of himself and others or as an Agent trustee, executor, administrator, receiver or

guardian or who would so receive the rent or been entitled to receive the rent, if the

building were let to a tenant. Section 2 (ix): "tenant" means any person by whom or

on whose account rent is payable for a building and includes the surviving spouse or

any son or daughter of a deceased tenant who had been living with the tenant in

the building as a member of the tenants family up to the death of the tenant and a

person continuing in possession after the termination of the tenancy in his favour,

but does not include a person placed in occupation of a building, by its tenant or a

person to whom the collection of rents or fees in a public market, cart-stand or

slaughter-house or of rents for shops has been framed out or leased by a local

authority. (Prominence stressed)In this case, the rent is admittedly payable by or on

account of the respondent for the schedule premises and so the Act calls him a

tenant. Petitioner No. 1 is the owner of the schedule premises and she is entitled-to

receive the rent in regard to the schedule premises (building ). Respondent No. 2

has been receiving the rent in regard to the schedule premises on behalf of

petitioner No. 1 and also as her agent admittedly. So, both the petitioners have the

status of the landlord in regard to the schedule premises (building ). Despite the Act

proposes the regulation of the leasing of buildings, fails to define that expression

(lease ). Therefore, we are to understand the effect of the definition of landlord

and tenant as above, to result into a concept of lease in the context. Both the sides

abundantly suggest that the law in the Act which is special law, never contemplates

to utilize Chapter V of the Transfer of Property Act relating to leases. The distinction

thus between the lease under the Act and for the purpose of the Act lease under

Chapter V of the Transfer of Property Act requires to be examined. Section 105 of

the Transfer of Property Act while defining the lease as a transfer of immovable

property with specific ingredients enumerated therein, calls the transferor a lessor,

the transferee a lessee, the price as the premium and the money, share, service or

other thing to be rendered, a rent. So, the lease therein is a creature of concluded

contract between the parties to be governed by Chapter V of the Transfer of

Property Act, the provisions of Indian Contract Act, the law of Contract and real

property. Therefore, it is said that the leases, for the purpose of the Act which is a

special Act, are not governed by such general laws. So read in the context of the

object and purpose of the Act, the definitions of landlord and tenant supra under

the Act confers the status on the parties to a lease with reference to the building or

the premises and strictly not concerned with the contract between the parties

except in regard to rent. A right of the landlord to recover rent with a corresponding

duty or application for the tenant in regard to the building is the only and the main

ingredient to confer such a status on them within the meaning of Section 2 (vi) and

Section 2 (ix) of the Act. So, the relationship between the parties as emanated from

such a legal status contemplated in the definitions is a fictional one with reference to

the demised premises and not with reference to the persons. It may also be

examined from the angle of protection of eviction of the tenant in the premises due

to an absolute non obstante clause in Section 10 of the Act barring few exceptions

in sub-clauses (1), (2) therein and Sections 11, 12 and 13 of the Act. The Act being

protection law for a tenant against eviction thus envisages the concept of

jurisdiction to a Court in a different sense than the normal understanding of the

concept and at any rate not in the sense what parties or pundits in the legal world

propound. Mr. Sundar Rajan the learned Advocate for the petitioners is thus right in

contending that the Court or the Tribunal (Rent Controller) decides its jurisdiction on

the basis of jurisdictional facts in a case and not the parties. So, contention

challenging the jurisdiction of the Rent Controller to entertain the eviction petition

deserves to be rejected.

( 11 ) THE ground of willful default of the respondent in paying the rent, for

eviction under Section 10 (1) and 10 (2) (i) of the Act has been found against the

petitioners. As a part of such a ground two questions were before the Court viz. , (a)

the rate of rent, and (b) the willful default in payment of rent by the respondent till

the eviction petition was filed.

( 12 ) ACCORDING to the respondent, the agreed rate of rent is Rs. 250/- per

mensem. The petitioners were not consistent in this regard. In the beginning, they

put it at Rs. 250/- per mensem commencing with the former Pulla Reddy, made it

Rs. 500/- per mensem at one stage, later on scaled it down to Rs. 400/- per

mensem having been settled through the intervention of somebody and ultimately

jacked it up to Rs. 1000/- per mensem which was demanded by petitioner No. 2 in

order to recognize the respondent as a tenant for which he did not agree. The

learned Rent Controller has found the agreed rate of rent at Rs. 250/- per mensem

since inception and the learned Sub-Judge although found the agreed rent to be at

Rs. 250/- per mensem fixed it at Rs. 500/-p. m. catling it as reasonable and fair

rent. The agreed rent at Rs. 250/- appears to be correct. Even the learned Sub-

Judge did not disagree with this although, he enhanced it to Rs. 500/- p. m. As

against the case of the respondent-tenant about the agreed rate of Rs. 250/- p. m. ,

the case of the petitioners is wholly unstable, strategic, tricky and also irresponsible.

As already pointed out, when the respondent tried to tender the agreed rent at Rs.

250/- p. m. by several required modes and tried to deposit in Court, petitioner No. 2

went to the extent of even denying the tenancy and the possession of the

respondent over the schedule premises. It is true that the respondent was not

actually inducted as a tenant in the premises by the petitioners. Admittedly one Pulla

Reddy was the tenant who was running a lodge called maurya Lodge therein, the

respondent and one Venkata Reddy purchased the furniture and other articles from

the former tenant in the premises and continued the business under the name and

style sangeetha Lodge, when it was disclosed to petitioner No. 2, he allowed them

to continue in the premises, but wanted the rent at Rs. 500/- p. m. with a deposit of

Rs. 5000/-, since the respondent had spent some amounts towards the repairs and

alterations in the premises, that was agreed to be deducted out of that amount and

that is how by deducting Rs. 100/- p. m. out of the rent of Rs. 350/- p. m. only Rs.

250/- were being received by petitioner No. 2 till the end of December, 1 1992, that

the respondent agreed to vacate the premises after December, 1982 but, however,

petitioner No. 2 wanted him to pay the rent at Rs. 1000/- p. m. from January, 1993

for which he did not agree but still, sent the rent at the same rate for which

petitioner No. 2 was not agreeable. With such controversies having been put to test

during enquiry, the learned Rent Controller has found that the agreed rent was only

Rs. 250/-p. m. and out of Rs. 1495/- spent for repairs, Rs. 100/- p. m. were

adjusted towards the subsequent rent and the balance of Rs 745 / -was also

adjusted by petitioner No. 2 for the months of January to March, 1993. He has

rejected the case-of the respondent that he spent Rs. 15,000/- for repairing the

premises. It is found that the petitioners could not prove that the rate of rent was

either Rs. 350/ - p. m. or that it was Rs. 400/- p. m. much less it was Rs. 500/- or

Rs. 1000/- p. m. The testimony of P. W. 2 who is said to be a partner of the former

tenant Pulla Reddy is found to be unreliable in regard to the rate of rent. In

conclusion, the learned Rent Controller has stated that the rent agreed upon

between the parties is only Rs. 250/- p. m. On going through the case records and

the judgment of the learned Rent Controller, this Court is unable to withhold its

appreciation regarding the manner in which the learned Rent Controller has dealt

with the matter of rent in coming to such a conclusion. He has not spared any pains

in examining the controversies between the parties, in assessing the evidence and

circumstances with all meticulous details and expending all the judicial application of

mind in doing that. Normally speaking such a finding recorded with such a standard

could not have been improved or interfered with by any Court much less the

appellate Court.

( 13 ) AS against such a satisfactory and convening finding of the learned Rent

Controller, the learned Sub Judge re-assessed the whole matter in regard to the rate

of rent and did not disagree with the learned Rent Controller in regard to the rate of

rent not being either at Rs. 400/- p. m. or at Rs. 500/-p. m. much less at Rs. 1000/-

p. m. The relevant portions of the question of rate of rent with the conclusion of the

learned Sub-Judge may be repeated as hereunder:-- ". . . . . . . . From a perusal of

the plea of both sides and evidence, it discloses that Rs. 250/-was a net rent being

paid the landlord and there is some other arrangement like repairs etc. , and thus

services were given set off towards portion of rent. Thus it can be said that apart

from Rs. 250/- being paid towards monthly rent, there are some other

considerations for landlords to accept Rs. 250/- only per month. Thus taking into

consideration all the circumstances. e. the age of the building, location and the

nature of business, I feel it reasonable to fix Rs. 500/- p. m. as fair rent payable

from January, 1983, This figure may not be a fair rent at present and it is far below

the rents existing today. Any how I feel it is reasonable for the tenant to pay rent at

Rs. 500/- per month till he is evicted by process of law. The landlord is at liberty to

file a calculation memo for arrears of rent and collect the same as per law. This is so

far as fixation of fair rent is concerned. . . . . . " (Emphasis added)It is also clear

from a reading of the relevant para leading to such a conclusion by the learned Sub-

Judge that he fixed Rs. 500/-p. m. as the reasonable and fair rent at the request of

the learned Advocate for the petitioners, Throughout, he has styled such an amount

of Rs. 500/- p. m. as fair rent. Mr. Narayana the learned Advocate for the

respondent is justified in contending that the learned Sub-Judge fixed the fair rent

and not the agreed rent between the parties. Mr. Sundar Rajan the learned

Advocate for the petitioners with all his efforts was unable to repel such a

contention as above. According to him, even the evidence discloses that since

beginning the rent was Rs. 350/- p. m. which was agreed to be paid at Rs. 400/- p.

m. at the intervention of somebody and consistently petitioner No. 2 had been

demanding Rs. 1000/- p. m. by way of rent, having due regard to the location of the

building, the normal rent which the building could have fetched at the relevant time

and in the absence of a definite rate of rent having been struck between the parties

to fix the rent at Rs. 1000/- p. m. According to him, the learned Sub-Judge is not

right in fixing the rent at Rs. 500/- per mensem and he ought to have fixed it at Rs.

1000/- p. m. The whole contention appears to be misconceived. The fallacy in that is

self-speaking. The petitioners have miserably failed to prove the agreed rent beyond

and above Rs. 250/- per mensem. Admittedly, although petitioner No. 2 demanded

Rs. 1000/- p. m. with some deposit, the respondent never agreed to pay it. Neither

the pleadings nor the evidence in the case can admit with success that the agreed

rate of rent could be either Rs. 500/- or Rs. 1000/- per mensem. The whole breath

and the sweat of the labour of the petitioners and the learned Sub-Judge was to

produce a result of the reasonable or fair rent which the schedule premises could

have fetched at the relevant time, but not the agreed rent. The learned Sub-Judge

found it at Rs. 500/- per mensem whereas the petitioners want it at Rs. 1000/-per

mensem. Both of them appear to be delving in a region beyond the scope of the

petitions either under Section 8 or under Section 10 of the Act.

( 14 ) THE manner is which the parties litigated the question of rent in the Courts

below and the manner in which the learned Sub-Judge dealt with the question of

rent with certain expressions compels this Court to probe into the real true legal

parameters of the matter, scope and purpose of such a subject. It cannot be

forgotten that we are dealing with two petitions filed under Ss. 8 and 10 respectively

of the Act. The expression rent used therein is being understood only for the

purpose of deciding the controversies involved between the parties in such petitions.

On the one side the tenant wanted to pay the rent at Rs. 250/- p. m. and on the

other the landlords wanted it to be paid at a higher rate as detailed above. As

already pointed out, the Courts decided it in their own way. But the law in the Act

appears to be clear and certain about the same. The Preamble, Sections 1 (1), 2 (vi)

and (ix), 3 (6) (iii) and (iv), 3 (8) (c) (i), 3 (9), 4, 5, 6, 7 (1) (a) and (b), 7 (2), 8 (1)

and (2), 9, 10, (2) (i) and 11 of the Act and also Rule 5 of the Andhra Pradesh

Buildings (Lease, Rent and Eviction) Control Rules, 1961 (hereinafter referred to as

the Rules) appear to be all and only the provisions dealing with the rent under the

Act.

( 15 ) THE expression rent is not defined under the Act or the Rules. In general,

the Act intends to consolidate and amend the law relating to the control of the rent

in addition to the regulation of the leasing of building and prevention of

unreasonable eviction of tenant. (Prominence stressed ). Such a simple expression

of rent in the preamble has been repeated in several provisions viz. , Sections 2 (vi)

and (ix), 6 and 8 (1) of the Act and Rule 5 of the Rules. Because of the absence of a

definition the expression rent should be understood in the normal grammatical and

the deltus (dictionary, encyclopedia, lexicon and thesaurus) sense and also the

normal meaning imported within Section 105 of the Transfer of Property Act and,

the Law of Property. Such a meaning in substance appears to be price, called the

premium or re-compense, consideration for the contract in money, share, service or

other thing to be tendered. The qualified expressions of rent under the Act are: Fair

rent-- Section 3 (6) (iii) of the Act and Section 4 (3) and (4) of the Act Reasonable

rent -- Section 3 (6) (iv) of the Act Monthly rent -- Section 3 (9) of the Act Agreed

rent -- Section 7 (2) (a) of the Act Advance rent -- Section 7 (1) (a) Proviso of the

Act Rent lawfully -- Sections 8 (2), 9 of the payable Act Rent due -- Sections 10 (2)

(1), and 11 of the Act. Although all the expressions supra under the Act mean only

rent, it has a different implication in a particular context and for the purpose,

particular provision, the right, liability and the reliefs. The question is not whether

the provisions of Transfer of Property Act are applicable or not to a case under the

Act. The question is whether we can borrow the meaning of the expressions under

Chapter V of the Transfer of Property Act for similar expressions in the Act. At least

as a policy of law and the doctrine or doctrines like pari materia unless the meaning

in such expressions is not inconsistent with the object and purpose and the

provisions of the Rent Control Act, the utility of such expressions may not be a bar.

Significantly enough, none of the provisions either in the Act or the Rules of the

Rent Control Act prohibit either the application of the provisions of Transfer of

Property Act or the bar to utilize the meaning of the similar expressions therein to

the provisions under the Act or the Rules. Therefore, the definition of rent under

Section 105 of the Transfer of Property Act (Chapter V) as the price to be called

premium, the money share service or other thing to be so rendered cannot be

totally ignored. Therefore, in the normal understanding of law, the rent should be

meant in the same way as above under subject to the limitations of the expressions

under the provisions of the Rent Control Act stated above. In view of the clear

expressions as above viz. , fair rent, reasonable rent, monthly rent, agreed rent,

advance rent, rent lawfully payable and rent due, there is no scope for

misunderstanding them or misapplying them to a particular situation. The fair rent

cannot be other than the one determined under Section 4 (1) of the Act and in

accordance with sub-clauses (3) and (4) thereof. The fair rent so fixed has definite

parameters within the provision. Sub-clauses (3) and (4) of Section 4 of the Act are

self-explanatory in that regard and to repeat: Section 4 (3): In fixing the fair rent of

residential buildings, the Controller may allow:-- (i) if the rate of rent or rental value

referred to in sub-section (2) does not exceed twenty-five rupees per mensem, an

increase not exceeding I2/2 per cent, on such rate or rental value; (ii) if the rate of

rent or rental value exceeds twenty-five rupees per mensem but does not exceed

fifty rupees per mensem, an increase not exceeding 183/4 per cent, on such rate or

rental value; (iii) if the rate of rent or rental value exceeds fifty rupees per mensem,

an increase not exceeding 371/2 per cent, on such rate or rental value; Provided

that in the case of a residential building which has been constructed after the 5th

April, 1944, the percentage of increase shall not exceed 371/2, 561/4 and 75

respectively. (4) In fixing the fair rent of non-residential building, the Controller may

allow - (i) if the rate of rent or rental value referred to in sub-section (2) does not

exceed fifty rupees per mensem an increase not exceeding 561/4 per cent, on such

rate or rental value; (ii) if the rate of rent or rental value exceeds fifty rupees per

mensem, an increase not exceeding 75 per cent, on such rate or rental value;

Provided that in the case of a non-residential building which has been constructed

after the 5th April 1944, the percentage of increase shall not exceed 75 and 150

respectively. Normally speaking, the rent payable by a tenant would be the fair rent

if any fixed for the building under the provisions of the Act supra and if no fair rent

has been fixed, the rent payable would be such reasonable rent as the authorised

officer may determine under Section 3 (6) (iii) and (iv) of the Act. " Such reasonable

rent to be fixed by the authorised officer would be the authority under Section 2 (ii)

of the Act who is authorised by the Government under Section 3 (1) of the Act. At

any rate, the authorised officer under the provision can never be the Controller. It is

also clear that it is the Rent Conroller who determines the fair rent under Section 4

(1) of the Act whereas it is the authorised officer who determines the reasonable

rent under the provision supra. The expression "agreed rent" used under Section 7

(2) (a) and Section 8 of the Act cannot be misunderstood to be either fair rent or

the reasonable rent within the meaning of the provisions stated above. It requires

no elaboration of the meaning either in law or on fact that agreed rent cannot be

more than what is agreed between the parties. The expression rent lawfully

payable used under Section 8 and Section 9 (2) of the Act should be either the fair

rent, reasonable rent or the agreed rent as the case may be and one cannot be

misunderstood with the other. Similarly the expression "rent due" under Section 10

(2) and Section 11 of the Act should be the lawfully payable rent which is due to be

paid either as fair rent, reasonable rent or agreed rent.

( 16 ) IN so far as agreed rent is concerned, the parties to the contract of lease will

decide themselves. As already pointed out, the fair rent has to be determined by the

Controller under Section 4 (1) (3) and (4) of the Act on the application made either

by the tenant or by the landlord. Section 4 of the Act is concerned only in

determining the fair rent without saying anything regarding the consequences of

such determination. Section 8 (5) of the Act has nothing to do about the

determination of the rent or the rent lawfully payable or the agreed rent, except

that, it entitles the tenant to deposit the rent before such authority and in such

manner as the case may be, if the landlord refused to receive she rent although the

tenant tenders the rent in accordance with Section 8 (2) to (4) of the Act. The

tender or payment of rent by the tenant and the deposit should be the rent lawfully

payable which may be the agreed rent, the fair rent or the reasonable rent as the

case may be, to make it, the rent lawfully payable. The expression "the rent lawfully

payable" under Section 9 of the Act cannot have any other meaning than what is

stated above in the context of Section 8 of the Act. That provision entitles the tenant

to deposit the rent lawfully payable to the landlord in respect of a building before

the concerned authority where the address of the landlord or the authorised agent is

not known. In such an event, the Controller may pass an order on the application

made by the person to withdraw the amount so deposited as the person entitled to

the said amount so deposited.

( 17 ) THE expression rent under Section 10 (2) (i) of the Act and the proviso is

meant to be any kind of rent which is due or payable to the landlord by the tenant

and if the Controller is satisfied that the tenant has not paid or tendered the rent

due by him and that there was a willful default in payment of rent, may pass an

order of eviction. In other words, for the purpose of this provision, the Court is

concerned with the question whether the landlord has committed willful default in

paying any kind of rent which was payable by the tenant to the landlord. To

elaborate, such a rent could be, agreed rent, fair rent determined under Section 4 of

the Act, reasonable rent, monthly rent, advanced rent and the rent lawfully payable,

as the case may be. The determination of the rent for the purpose of this provision

when the parties are at issue, should be understood as the rent due or payable and

not paid or tendered amounting to willful default to suffer an order of eviction.

There is no scope in the provision to think that the Tribunal is called upon to actually

determine the fair rent or the reasonable rent to be paid by the tenant. The scope of

Section 10 and the special provision as a ground for eviction also need not be

emphasised that it is intended to pass an order of eviction on such a ground and not

as an application under Section 4 to determine the fair rent.

( 18 ) THE payment or deposit of rent during the pendency of the proceedings for

eviction is the subject-matter of Section 11 of the Act. A tenant is debarred from

contesting an application for eviction filed under Section 10 of the Act before the

Controller or to prefer any appeal under Section 20 of the Act as against any order

made by the Controller unless he has paid or deposited all arrears of rent due in

respect of the building up to the date of payment and continues to pay or deposit

the rent which may subsequently become due. The emphasis is on all arrears of rent

due up to the date of payment. The failure to comply with such a mandate under

Section 11 (1) of the Act would put the tenant to the consequences of suffering an

order of eviction by stopping all further proceedings under Section 11 (4) of the Act

unless the tenant shows sufficient cause to the contrary. The expression "all arrears

of rent up to the date of payment" is so simple as to be determined for the purpose

of the provision that it includes all kinds of rent stated above including the fair rent

determined under Section 4 of the Act but at the same time it does not want that

determination of the fair rent under Section 11 of the Act which is a totally different

exercise and for a different purpose. The authorities who exercise powers under the

different provisions stated above, some times may be different, exercising different

powers and for different purposes. One cannot be mistaken for the other. The

consequences in such provisions also appear to be different.

( 19 ) APPARENTLY both the Rent Controller and the learned Sub Judge were strictly

dealing with a petition under Section 10 of the Act to examine the ground of eviction

on willful default in payment of rent alleged against the respondent under sub-

clause 2 (i) and Proviso thereof and record a finding whether the tenant had not

paid or tendered the rent due by him in respect of the building. Whether it was fair

rent, agreed rent or any other kind of rent, they were expected to examine and

record a finding that such a rent was due and whether such a rent was paid or

tendered and if not whether there was willful default in tendering or paying the rent

due on the part of the tenant. In the context, determination of the fair rent or any

other kind of rent either under Section 4 or under any other provision of the Act was

totally irrelevant and uncalled for in the proceedings. The main issue between the

parties as to what was the agreed rent or rent payable by the respondent to the

petitioner, and that was found to be Rs. 250/- per mensem by the learned Rent

Controller and as already pointed out, the learned Sub-Judge did not disagree with

such a finding, if not agreed with it. A simple reading of the portion of the judgment

of the learned Sub-Judge which is extracted as above, would clearly indicate that he

determined the fair rent within the meaning of Section 4 of the Act although he

came to the conclusion that the rent which was being paid was Rs. 250/- per

mensem. Mr. Sundar Rajan the learned Advocate for the petitioner made all possible

efforts that the fair rent as contemplated under Section 4 of the Act was not

determined by the learned Sub-Judge, but according to him it was the determination

of the actual rent payable. According to him, since there was already a tenant in the

demised premises by paying the rent at Rs. 250/- per mensem and since the

Respondent was not inducted as a tenant by the petitioner with a stipulation of the

same rate of rent and since the petitioner, all along demanded more rent and even

up to Rs. 1000/- p. m. and since he was not agreeable to continue the respondent

as a tenant in the premises unless he paid the rent demanded by him, the learned

Sub-Judge was bound to determine such a rent and he has rightly done so. His

grievance is that it ought to have been fixed at Rs. 1000/- p. m. and not at Rs. 500/-

p. m. The contention emanates from a fallacy if not a fantasy. It may be that the

petitioner wanted the rent to be paid more than Rs. 250/- p. m. and even up to Rs.

1000/- p. m. and admittedly it was not agreed by the respondent. Actually,. the

respondent, continued to pay Rs. 250/- p.m. which the petitioners accepted without

any demur till the last payment which was sent by Money Order and was refused.

From the evidence and admissions, the rent payable and paid at Rs. 250/- p. m. was

definitely fixed both by the learned Rent Controller and also the learned Sub Judge.

There was no scope at all to think of any other rate of rent payable or paid both

from the pleadings and from the evidence. The expressions of the learned Sub

Judge are very clear as extracted supra that since the learned Advocate for the

petitioner wanted the fair rent to be fixed or reasonable rent to be fixed, he

determined it at Rs. 500/-p. m. which is also inconsistent with the case of the

petitioner that he wanted rent to be paid at Rs. 1000/- p. m. It is a clear case

wherein the learned Sub Judge has exercised the powers under Section 4 of the Act

which was neither warranted nor invested with, in a petition under Section 10 of the

Act. Thereby, he appears to have totally exercised a power which is not vested in

him nor warranted to be exercised in the proceedings before him in the appeal and

it may amount to exercising of a power without jurisdiction or the purpose, and at

any rate, an exercise of power which may tantamount to abuse of power not vested

in him. Whereas the learned Rent Controller dealt with the matter in accordance

with law and procedure and within the powers vested in him, the learned Sub Judge

as an appellate authority and an experienced Judicial Officer appears to have acted

with great judicial impropriety or lack of understanding of the true implications of

the law as detailed above which may expose him to the suspicion whether it was

done with lack of knowledge, competence or with a deliberate intention to favour a

party before the court and even to doubt the extraneous force if not with ulterior

motive touching the integrity of the officer dealing with the matter. It is for the

proper authority to examine this and think of the appropriate measure to avoid such

a conduct on the part of such Officers. At any rate, this Court finds no reason to

support the learned Sub Judge in this regard to any extent and on the other hand,

expresses all the agreement with the learned Rent Controller in regard to the rent

payable by the respondent for the purpose of Section 10 (2) (i), and the proviso of

the Act as aground for1 eviction. Let alone the reasonable rate of rent could be Rs.

1000/- p. m. to be paid by the respondent, it could not have been Rs. 500/- p. m. as

decided by the , learned Sub Judge for the purpose of considering an application

under the said provision. Even the reasons given by the learned Sub Judge that the

reasonable rent ought to have been Rs. 500/- p. m. appears to be more speculative

than based on any material. Therefore, for the purpose of finding out whether there

was a default much less willful default in paying the rent by the respondent it ought

to have been reckoned at the rate of Rs. 250/- p. m. as was rightly pointed out by

the learned Rent Controller.

( 20 ) BOTH the Courts below have held that there was no default much less willful

default on the part of respondent in paying the rent to the petitioners and the

eviction on that ground could not be ordered. Mr. Narayana, the learned Advocate

for the respondent has contended that the finding as such being concurrent, on the

question of fact about the default in payment of rent, cannot be interfered with in a

revision petition like this. Mr. Sunderrajan, the learned Advocate for the petitioner

has counter-contended that although whether there is a default in payment of rent

or not may be a question of fact, whether it would be a willful default for the

purpose of Section 10 (2) (i) proviso of the Act would be either a mixed question of

law and fact or a pure question of law. The counter contention appears to be sound.

When the provision contemplates that default of payment of rent as a ground for

eviction, in addition to the proviso to find out whether the default was willful, it can

never be a pure question of fact. In view of the non obstante clause in Section 10 of

the Act that a tenant shall not be evicted except in accordance with the provisions of

the said Section or Sections 12 and 13, it is for the landlord to prove the contrary by

establishing that there has been failure on the part of the tenant either to pay or to

tender the rent due within the stipulations of the provision and then in view of the

proviso, it is for the Rent Controller to be satisfied that the tenants default to pay or

to tender the rent was willful or not willful so as to pass or not to pass an order of

eviction on such a ground. The initial burden of proving the default in payment of

rent should be necessarily on the landlord in the context of the provision and the

purpose for which it is intended and in view of the intendment of the law-makers as

already pointed out, and thereafter it is for the Rent Controller to examine all the

material before him whether produced by the landlord or tenant to be satisfied that

either there was a willful default or not to either pass an order of eviction or to

reject the petition on such a ground. In the nature of the provision and also the

proviso to Section 10 (2) (i)of the Act, whether there is a default on the part of the

tenant in paying or tendering the rent and whether it is willful or not, depends upon

the facts and circumstances of each case. Such facts and circumstances are to be

examined in the light of the satisfaction to be derived by the Rent Controller in

accordance with judicial exercise to assess the evidence and draw the inference as

such. Although it may be easy to understand the grammatical meaning of "non-

payment, or non-tendering the rent" whether it was willful or otherwise would be a

legal inference to be drawn on the established facts, the circumstances of the case

and the legal interpretation of the willful default. Mr. Sunder rajan the learned

counsel for the petitioner is right in pointing out that when willful default is not

defined or explained in the Act, the interpretation of the same by the precedents

would lay the guidelines in such a situation based on the legal consequences of

nonpayment of rent or not tendering of it in a particular situation. Although such a

legal inference of willful default may flow from the facts and circumstances

established in the case, it must be held to be a pure question of law or at least a

mixed question of law and fact to be examined and decided by the Courts. In that

view of the matter, the contention of the learned Advocate for the petitioner

deserves to be examined in the background of the legal forte on the basis of the

facts and circumstances found in the case.

( 21 ) AS already pointed out it is found by the courts below that all along the

respondent was paying the rent at the rate of Rs. 250/-p. m. and petitioner No. 2

received it and even adjusted certain amounts towards the dues out of the amounts

spent towards the repairs till the rent tendered by money order was refused by him

and till the proposed deposit of the money by the respondent into court was resisted

by the petitioners Mr. Sunder Rajan has attacked this finding for several reasons.

According to him, there were number of defaults in tendering or paying the rent on

the part of the respondent before the petition was filed and subsequent to that also

till the order of eviction was passed. According to him, if that conduct is accepted as

a default, the repetition of the defaults without any plausible explanation on his part

should be put straight into the jacket of willful default so as to enable the Rent

Controller to pass an order of eviction under the said provision. Before adverting to

this, certain dates may become relevant.

( 22 ) PETITIONER No. 2 received Rs. 250/-sent by money order for the month of

April, 1983. The finding is that he has received the rent up to April, 1983 at the rate

of Rs. 250/-p. m. The respondent deposited Rs. 750/ - with the Rent Controller in R.

C. C12/83 for the months of May, June and July, 1983. The contention of the

petitioners that the rents for January to March 1983 were not paid has been

rejected, because the balance of Rs. 745/- out of Rs. 1495/- spent by the

respondent towards repairs was adjusted for the rent towards the months of

January to March. Therefore, the learned Rent Controller has found and confirmed

that there was no default in paying the rent till July, 1983. R. C. C. 12/83 was field

on 11-8-1983. Therein the respondent proposed to deposit the rent for the months

of May, June and July, 1983 amounting to Rs. 750/ -. It was resisted with all might,

by the petitioner No. 2 firstly on the ground of want of relationship of landlord and

tenant and secondly on the ground of inadequate tender or payment of rent at the

rate of Rs. 350/- p. m. , 500/- p. m. and even at the rate of Rs. 1000/- p. m.

regarding which the parties did not agree. There was also exchange of notices

between the parties in this regard. Admittedly, the court did not pass any orders on

the application of the respondent seeking permission to deposit the rent. In the

nature of the counter filed by the petitioners in R. C. C. 12/83, the petitioners were

not prepared to receive the rent either tendered or deposited by the respondent due

to the grounds stated above. Although the petitioners did not recognize the

respondent as their tenant in the demised premises and failed to receive the rent

tendered or deposited by him, they chose to seek his eviction by filing R. C. C. 3/85,

on 24-1-1985. Therein in para-5 the allegations of default in payment of rent were

made. Such allegations appeared to have been made in the background of the

manner in which the respondent came into possession of the demised premises, the

proposal and counter proposal regarding the rate of rent which was not actually

accepted, his attempt to send the rent at the rate of Rs. 250/- per month although it

was not agreed by petitioner No. 2, his failure to pay the rent at the rate of Rs.

1000/ - p. m. demanded by petitioner No. 2 and Rs. 400/-p. m. sought to be settled

through the intervention of one Sidda Reddy, Proprietor of Triplex Lodge and the

respondents failure to pay even that agreed rent and his attempt to some how make

the petitioner No. 2 to agree to receive Rs. 250/-p. m. and his conduct as a whole

being not bona fide and only to harass the petitioners. (This conduct is said to be

willful default) There is no merit in the allegation of the default in payment of rent

by the respondent which could be made a ground for eviction under Section 10 (2)

(i) proviso of the Act. Even the evidence did not improve the basis for eviction on

the ground of willful default in payment of rent. Petitioner No. 2 in his testimony as

P. W. 1 repeated what is alleged in the petition for eviction, made some allegations

against the respondent regarding the demand of higher rent and refusal as above,

admitted that he gave a telegram to respondent wherein he mentioned that he is a

trespasser in the premises and ultimately he admitted that because he did not agree

to the rent sought to be paid or deposited by the respondent he did not ask him to

deposit the rent into court and that he is a tenant of the building from January,

1983. Even then, there is no definite testimony as to how and since when the

respondent became defaulter in payment of rent and was to be treated as a willful

defaulter. However, he stated that without prejudice to his rights he withdrew the

money deposited by him for March or April, 1986. In fact with such indefinite and

vague allegation of default in payment of rent as a ground for eviction, the petition

ought to have been thrown out. A faint hearted creation of the ground of default in

payment of rent was a fiction made incidentally to resist the respondent from having

any right as a tenant over the demised premises at any stage, but at the same time

to evict him as he did not agree to pay more rent as demanded by petitioner No. 2

as detailed above. With such a strategic or tricky stand of the petitioners the

respondent is sought to be evicted from the premises.

( 23 ) MR. Sunderrajan, the learned Advocate for the petitioners by filing a memo

dated 4-1-1994 has tried to demonstrate as to how the respondent conducted

himself in depositing the rent into court. There may not be any need to record the

memo in detail except to refer some relevant portions of the same to appreciate the

contention of the learned Advocate. As already pointed out Rs. 750/-covering three

months rent for May, June and July, 1993 was deposited on 16-8-1993. There are

as many as 18 deposits or payments of rent by the respondent up to December,

1985 before the eviction petition was filed. The defaults pointed out are for the

months of Oct. 1983 and June, 1984. The defaults after filing the eviction are also

pointed out by Mr. Sundarrajan, the learned counsel for the petitioners. They are

defaults for the months of March 1985, June 1985, January 1986, March 1986, June

1986, February 1987, June 1987, August 1987, March and April 1988, August 1988,

October 1988, December 1988, February 1989, April 1989, Sept. 1989, July 1990,

October 1990, December 1990, February, March, May, June, August, September,

October and December, 1991, January and February 1992, April, June and July

1992, January to August, October and Nov. 1993. It is true that there are number of

defaults in depositing the rent subsequent to filing of the petition. It must be

concluded at this stage that there can never be default in paying the rent till the

date of filing the petition. The question of willful default, therefore, can never arise

for consideration. The findings of the court below on that account can never be

wrong. Therefore, the question is whether the subsequent defaults as detailed supra

could be based as a ground for eviction under Section 10 (2) proviso in the

background of the legal implications flowing therefrom.

( 24 ) STRICTLY speaking the expression default much less willful default does not

find a place in Section 10 (2) (i) of the Act as a ground for eviction. It is the

meaning of these words which is understood as a willful default in payment of rent

as the ground. A tenant shall not be evicted from a premises as a rule in view of the

non obstante clause in Section 10 (1) of the Act. But a landlord who seeks to evict

his tenant should apply to the Rent Controller seeking a direction for eviction

alleging that the tenant has not paid or tendered the rent due by him in respect of

the building 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 day

of the month next following that for which the rent is payable. Therefore, the

Controller after giving the tenant a reasonable opportunity of showing cause against

the application if satisfied will issue such a direction provided that "if the Controller

is satisfied that the tenants default to pay or tender rent was not willful, give the

tenant a reasonable time not exceeding 15 days to pay or tender the rent due by

him to the landlord up to the date of such payment or tender and on such payment

or tender, the application shall be rejected. " So what the law intends is that if the

tenant has not paid or tendered the rent due, if that amounts to default, and unless

such default was not willful, an application for eviction of the tenant on such a

ground of default in payment of rent will be rejected, however, on payment of rent

due up to the date of payment within some time so fixed not exceeding 15 days

from the date of the order. The whole expression in Section 10 (2) (i) and proviso is

in the simple past tense (page 109 of the English Grammar and Composition of

Wren and Martin 101 Edn. ). There is not even a slight indication that such an

expression therein could be read or understood as either simple present tense,

present continuous tense, past continuous tense or past present continuous future

tense (Chapter XIV of Wren and Martin supra ). One thing is understandable that in

order to constitute a default or willful default within the meaning of the provision,

there must be clear allegation or plea in the application for eviction of the landlord

to mean, that by the time the application was filed, the default in payment of rent

had already occurred. A landlord cannot be expected to say that a tenant would

commit future default also after filing of the petition, except to describe the tenant

as a chronic defaulter or a habitual defaulter. Even the Controller cannot anticipate

as to what would be the conduct of the tenant after filing of the petition. The law

while protecting a tenant against eviction from the premises, as an absolute

protection has provided an in built liability on him or her to tender or pay the rent

regularly and up-to-date and in accordance with law or otherwise, to lose the legal

protection therein. That should be up to the date of filing of the application for

eviction under the provisions of Section 10 (2) (i ). The law did not stop there. It has

imposed further obligation on the part of the tenant where an application for

eviction has been made under Section 10 to pay to the landlord or deposit with the

Controller or the appellate authority as the case may be, all arrears of rent due in

respect of the building, up to the date of payment or deposit and to continue to pay

or deposit any rent which may subsequently become due in respect of the building

until the termination of the proceedings before the Rent Controller or the appellate

authority, as the case may be, or otherwise, he will not be allowed to contest the

eviction proceedings or the appeal proceedings. Such an obligation is incorporated

under Section 11 (1) of the Act. In this provision also, the expressions default or

willful default are not explained. But while imposing the obligation to pay or to

continue to pay the rent by the tenant throughout till the termination of the

proceedings, the provision has cautioned the tenant to suffer a summery order of

eviction on failure to fulfil the obligation, however, subject to the other conditions

under Section 11 (2) to (4) of the Act. In substance, the deposit of rent under sub-

section (1) shall be made within the time and in the manner prescribed, where there

is dispute as to the amount of rent to be paid or deposited, the Controller will hold

an enquiry and decide it and if the tenant fails to pay or deposit the rent, so

determined will stop further proceedings and make an order directing the tenant to

put the landlord in possession of the building, unless the tenant shows sufficient

cause to the contrary. These are the further protections provided to the tenant

against eviction notwithstanding the non-payment of rent even after the enquiry

during the eviction proceedings and the appeal proceedings. Section 11 of the Act is

a clear provision imposing an obligation on the tenant during the pendency of the

eviction proceedings and the appeal proceedings regulating the procedure and the

consequences of the non-compliance of such an obligation. In other words Section

I0 (2) (i) and Section 11 (1) of the Act are clearly intended for different purposes

and different consequences, the former being the obligation to pay or tender the

rent till the application for eviction is filed, whereas the latter, for such an obligation

commencing from the time of filing the eviction petition till the proceedings are

concluded. To understand the two provisions otherwise should naturally produce

absurd results inconsistent with the object and purpose of the Act under the

preamble of the Act and the non obstante clause in Section 10 (1) of the Act.

( 25 ) IN the content of Sections 10 and 11 of the Act, perhaps, no interpretation is

possible that the future defaults in paying or tendering the rent by the tenant after

filing the eviction petition can be taken into consideration or made a ground to pass

an order of eviction under Section 10 (2) (i) of the Act. But Mr. Sunder Rajan, the

learned Advocate for the landlords has made bold to put up such a construction in

law and tried to support himself with a pronouncement of our High Court in D. L.

Sathyanaranana v. Kalasantha Radha Krishnaiah (1994) 1 APLJ 328. Therein in the

penultimate para No. 6, he has depended upon the following observations of the

Court: ". . . . . . . . . . When this is the factual situation, when the petitioner has

failed to pay the rents for a long period of nearly two years from July, 1986 to June,

1988 and deposited the rent before the Rent Controller in June, 1988, both the

Courts were perfectly justified in finding that the petitioner has committed willful

default in payment of rents. They were further justified in taking note of the

subsequent events of the petitioner committing default in payment of rents during

the pendency of the rent control proceedings. . . . . " The question is whether these

observations would really mean that the subsequent defaults in payment of rent by

the tenant could be made a basis to pass an order of eviction under Section 10 (2)

(i) of the Act and whether in the pronouncement supra can it be taken as any law

declared in that regard to make it a binding or supporting precedent the answer

should be necessarily in the negative. It is never stated therein as could be made

out, that such future defaults could be made a basis for eviction, but what is stated

therein is that the courts were justified in taking into consideration of the

subsequent defaults to hold that the tenant had committed willful default. If we read

the entire judgment, it is very clear that since the default in payment of rent within

the meaning of Section 10 (2) (i) of the Act was established as a matter of fact and

law, the subsequent event of defaults by the tenant were held to be justified to be

taken note of to call the tenant a willful defaulter. It is one thing to say that the

subsequent defaults can be made a basis to pass an order of eviction and another

thing to say that such a conduct could be taken note of, to call-the tenant a willful

defaulter to suffer an order of eviction under Section 10 (2) (i) of the Act. If the

former is absent the latter can never come into play at all. If the former is

established, the latter may play some role to confirm that the tenant exhibits himself

a conduct of willful default. Secondly, except as a passing observation as above,

that the courts were justified in taking note of the subsequent events of the

petitioner committing default in payment of rent during the pendency of the rent

control proceedings as a decision to examine the past conduct of the tenant in

committing the default in payment of rent till the date of filing of the eviction

petition, no law as such is dealt with on the question or is declared. The law of

precedents has clear parametres. In order that a law may be declared as a

precedent, such a question should be raised in the proceedings considered,

interpreted and supported by reasons, authorities etc. , or otherwise, there can

never be a ratio decidend in law to make it a binding law declared by a court as a

part of judicial law making process. Mr. Sunderrajan, the learned counsel is not for

a moment postulating such a rule of precedent while depending upon the

pronouncement supra. This court is of the considered view that notwithstanding the

pronouncement supra, no law can be taken to have been declared or can be

declared that the failure to pay or tender the rent by the tenant after filing of the

eviction petition under Section 10 (2) (i) of the Act can be made a basis for passing

an order of eviction as against the tenant as a ground for eviction or otherwise, it

would be repugnant to Section 10 (1) of the Act.

( 26 ) ASSUMING for arguments sake that the petitioners had established the

ground of eviction on default in payment of rent as against the respondent on facts

and in law by the time the eviction petition was filed, the question is whether the

conduct of the respondent in committing number of defaults after filing the petition

in payment of rent would make him a willful defaulter to suffer an order of eviction

as such a subsequent event could be taken note of to pass an order of eviction. It is

true that the respondent is not regular in depositing the rents during the pendency

of the proceedings as detailed above. There are umpteen number of defaults for a

long time. It has spread from the date of eviction petition to the date of order of

eviction and till it was put into execution. Mr. Sunderrajan, the learned Advocate has

even pointed out that the arrears of rent to be paid by the tenant extended to

thousands of rupees viz. , Rs. 66,000/- from January, 1985 to December, 1993

calculated at the rate of Rs. 500/- p. m. and even when he deposited Rs. 59,250/-

during the pendency of the execution petition, he was still due to pay Rs. 6,750/- as

on 1-1-1994. Therefore, the learned advocate calls the respondent a chronic

defaulter, a habitual non-payer of rent and a recalcitrant tenant who has no respect

for the obligation imposed in law on him in paying the rent till the proceedings were

terminated. Mr. Narayana, the learned advocate for the tenant has tried to repeal

this contention as a total falacious one projected from a deliberate conduct on the

part of the petitioners by blowing hot and cold, by preventing the respondent from

paying or tendering the rent throughout and by affronting strategy and trick to trap

him in the net of the legal jargon to style him a bad tenant, recalcitrant in conduct

and unrepentent in the mood in order to suffer the order of eviction under Section

10 (2) (i) of the Act. According to him, it has been a devise throughout on the part

of the petitioners to drive out the respondent from the premises by hook or crook. It

is true that such expressions may appear to be little harsh. But this court after

examining all the facts and circumstances of the case is constrained not to treat

such a contention lightly on the other hand is persuaded to accept it, justifiably both

in law and on facts.

( 27 ) THE expressions "default" and "willful" to become a compound form as "willful

default" are not defined much less explained in the Act. S. I0 (2) (i) of the Act does

not even use any of these expressions. It only makes non-payment or tender of the

rent as required a ground for eviction. The proviso to the provision relieves the

tenant from the result of non-payment of rent if the Rent Controller is satisfied that

the failure to pay or tender the rent is not willful. Thus it is in the proviso, the

expression "willful" is used. The provision and the proviso if read together mean that

a tenant will suffer the order of eviction if he willfully fails to pay or tender the rent

to the landlord as required. Perhaps, such a meaning is pressed into the expression

willful default.

( 28 ) WHAT is willful default within the meaning of Section 10 (2) (i) of the Act

When law makers did not define or explain it in the Act, as and when the Occasion

arose in each case, the courts have explained it depending upon the facts and

circumstances of each case thereby declaring the law to make it precedent. Such

precedents while laying down the general principles have only provided illustrations

as to when the non-payment or tender of the rent by the tenant to the landlord

would or would not constitute willful default as a ground for eviction. So, they can

never be taken as either exhaustive or to serve the need for all the cases or for all

the time to come.

( 29 ) THE true and the real implications of the concept of willful default have been

set at rest by the apex court of the country in more than one authoritative

pronouncements after a deep probe into the same, vide S. Sundaram Pillal v. V. R.

Pattabiraman, AIR 1985 SC 582 [LQ/SC/1985/23] , Rakapalli Rajarama Gopalarao v. Nara-gani Govinda

Sehararao, AIR 1989 SC 2185 [LQ/SC/1989/452] . Equally so, our own High Court has set at naught the

same in several precedents until the day vide, Patthan Khan v. Syed Pasha, (1975) 2

APLJ (HC) 318, K. Nagappav. T. D. Krishnasa, AIR 1971 Andh Pra 243, Chakka

Subba Rao v. Nalisetty Venkamma, (1969) 2 Andh WR 446 and P. Rajkumar v. N.

Krishna, (1994) 3 ALT 597. [LQ/APHC/1994/119] After a thorough deliberation of the concept and the

meaning of the expressions willful default in paras 21 to 24 in S. Sundarams case

(AIR 1985 SC 582 [LQ/SC/1985/23] ) (supra), the Supreme Court summed up the law and declared it:

". . . . . . Thus, a consensus of the meaning of the words willful default appears to

indicate that default in order to be willful must be intentional, deliberate, calculated

and conscious, with full knowledge of legal consequences flowing therefrom. Taking

for in-stance 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 willful default because such a course of

conduct manifestly amounts to willful default as contemplated either by the Act or

by other Acts referred to above (emphasis supplied ). Such a principle was laid down

with reference to such expressions used not only in Tamil Nadu Buildings Lease and

Rent Control Act 118/60 but also such expression in similar enactments. The

principle supra has been bodily lifted and repeated in Rokapallis case (AIR 1989 SC

2185) (supra) while dealing with the provision in question namely Section I0 (2) (i)

proviso of the Act (A. P. Act ). In S. Sundarams case (supra) the explanation for the

default in paying the rent by the tenant was that he was ill and that he was not able

to pay to rent. In Rakapallis case (supra), the tenant failed to pay or tender the rent

for almost six months and it was considered in the context of his bona fide belief

that he was entitled to purchase the property under the oral agreement dated 14-

10-1977 with the landlord and not because of his having no desire to pay the rent to

the landlord. In that context, the failure to pay the rent to become willful default or

otherwise was explained, examined and held in the negative. Particularly in the

latter case, even where the tenant did not pay the rent setting up an oral agreement

of sale for such a long time, was accepted to be a proper explanation and was

relieved of the consequences of the eviction on the ground of willful default. In

Patthan Khans case (1975 (2) APLJ (HC) 318) (supra), the question involved was

about the irregular payment of rent by the tenant to the landlord on the ground of

certain terms inferred by the tenant as to which of the buildings the landlord should

adjust the rent was negatived and the conduct of the tenant regarding the non-

payment of rent was held to be willful default. In Mallikarjuna Rao v. Godavarthi

Seshamma, AIR 1971 Andh Pra 298, the question was elaborately dealt with and the

meaning of willful default was explained thus: ". . . . . The primary meaning of the

word willful as an act being spontaneous or arising out of free will has been

supplanted in several branches of law. The use of the expression willful default in

the Rent Control Act affords the clear intention of the Legislature that it is not the

mere omission to do a thing that is intended. The test should be whether the person

failing to pay the rent had reasonable ground for the belief that the omission to pay

rent did not constitute default. It is useful to" draw a line between two types or

broad divisions. On the one hand may be cited cases where the omission to pay is

shown to be negligent and is lacking in any reasonable excuse or bona fide belief.

On the other side of the line may be placed cases where a reasonable ground for a

bona fide belief that no default has occurred has existed. "in Chakka Subbaraos

case (1969 (2) Andh WR 446) (supra), the term willful default was held to mean

"deliberate or intentional nonpayment or non-payment due to gross indifference".

The word willful as used in contra distinction to the words accidental or in-

advertant. It does not imply any element of moral turpitude, but it eliminates an

honest error of judgment. Following the two rulings Mallampalli Matlikarjuna Raos

case (supra) and Chakka Subbaraos case (supra) with approval, in P. Rajkumars

case (1994 (3) ALT 597 [LQ/APHC/1994/119] ) (supra), the meaning was further recorded thus:". . . . . . .

PERHAPS, this provision may be synonym to rule against forfeiture contemplated

under Section 114 of the Transfer of Property Act. What is willful default depends

upon the facts and circumstances of each case. The Rent Controller appears to have

gone by a logical consequence of non-payment of rent in the absence of explanation

as a willful default. In the considered opinion of this Court, the Court is bound to

give a finding that the default in payment of rent is willful or in the converse and

should dismiss the petition for eviction on such a ground by giving a different finding

that the default either to pay or tender the rent by the tenant, was not willful. "

( 30 ) NOW, with the guidance of the settled law in the precedents supra and by

reading Section 10 (2) (i) and proviso and by a proper understanding of the matter

both in the background of the preamble of the Act and also the Preamble of the

Constitution of India (Justice, social, economic and political), the concept built in the

expressions willful default can be understood in its true letter and spirit. As already

pointed out, willful default is neither defined in the Act nor can be defined in law. An

attempt to define it may stultify and distort the meaning and make it unadoptable to

factual situations of human conduct. As a compound expression dictionaries cannot

provide the meaning, encyclopedia has no space for it law lexicons only attempt to

explain and thesaurus may say few synonyms and antonyms. Only the combination

of all such treatises (deltus) may compress the whole lot of its product into some

understandable illustrative synopsis if not a capsule to easy consumption.

Incomprehensible as the expressions appear, they inescapably provide the meaning

in the facts and circumstances of each case. The tests laid down in the precedents

of the Supreme Court and of our own High Court should be necessarily in the back-

ground of the factual situations of each case. Even the same test may not serve a

particular individual or a case or the circumstance to know whether the default of

payment or tender of rent by a tenant is willful or not. Added with the socialisation

of law emboldened in the preamble of the constitution, the meaning in such

expressions cannot be a static, wooden, stable or unadoptable to the individual and

the case. What is true to one individual may not be applicable to the other having

due regard to the economic, social, environmental, educational, cultural and such

considerations within which the individual is born, brought up and pushed into

human activity. What is applicable to rural areas may not be applicable to urban

areas. What is applicable to educated persons may not be equally applicable to

uneducated if not to illiterate persons. Even the different professional situations may

also alter the conduct and the consequences. The communication, the opportunity,

preparation and the resistance by the other side or the adversary are also the

relevant factors. The illustrations in respect of the above expressions may clarify the

situation. The understanding of the legal obligation to pay the rent and the

consequences of non-payment, may be totally different between a true rural folk

and an urban educated white collared person. Even to approach for legal-aid

through a legal advisor may not be even known to many such persons in the rural

areas or illiterate and ignorant persons in the urban area to pay or tender the rent in

the manner prescribed under Sections 8 and 9 of the Act. It cannot be forgotten

that even now most of the people particularly in rural areas live in confidence and

suffer the consequences. The economic considerations cannot be overlooked or

need not be over-emphasised. The capacity to pay the rent regularly may depend

upon the social and family obligations for an honest and sincere human-being. That

should differ for different classes in the society namely, poor, lower, middle and

upper classes. What is true to a wood cutter and a stone cutter petty trader, street

hawker or a school teacher may not be the same for a diamond cutter a business

tycoon, a bureaucrat and a commercial baboon. There may be any number of

instances where the genuine attempts of the tenants to pay or tender the rent may

be prevented, avoided and even suppressed or depressed by a systematic scheme

by expert landlords either directly or indirectly through their henchmen. In how

many instances the payment of rent is acknowledged in writing either by issuing

receipts or otherwise even among educated and urbans Utter poverty, illness,

litigations and social obligations may be the added factors to prevent a tenant from

paying the rent regularly in spite of his best intentions, bona fides and preparations

to pay. Such illustrations are umpteen and plenty and are incapable of finding a

record in black and white having due regard to the varied human conduct and

fabulations. That is how. the law-makers have left it to the wisdom of the courts or

the Tribunals as the case may be, to be satisfied or not, in a given situation whether

the non-payment or tender of rent by a tenant would constitute willful default or

not. That is how, the Supreme Court in the two precedents supra has pithily put the

meaning in clear words to constitute willful default.

( 31 ) NOW judged the true concept of willful default in the background of all the

legal expressions supra, the following tests may be applied for the facts and

circumstances of each case: 1) The social and economic status of the tenant and the

landlord. 2) The capacity of the tenant to pay the rent at a given time. 3) The bona

fide conduct of the tenant in making attempts to pay or tender the rent to the

landlord. 4) The conditions of the tenant at a particular situation lie family

obligations, social obligations, illness, festivals etc. 5) The conduct of the landlord in

relation to the tenant regarding payment of rent. 6) The totality of the

circumstances in a particular case to satisfy the conscience of the court that the

tenant was guilty or otherwise in regard to payment or tender of rent. 7) Any other

useful circumstances in a given case in support of the above tests. There are only

illustrative and not exhaustive.

( 32 ) NOW we are applying the above tests to the facts and circumstances of the

present case. Economically both the sides --landlord and the tenant --appear to be

not much different. The former is a professional whereas the latter is a

businessman. The former appear to be urban whereas the latter appear to be a

rural. Educationally and in the legal learning, the former (petitioner 2-Advocate)

holds a superior position than the latter. There is no material to compare them on a

social basis. The respondent was always on the defensive whereas the petitioners

were on the offence front in view of the fact that the latter entered into the

premises through a former tenant Mr. Pulla Reddy and was continuing at sufferance

at varied terms not very advantageous to the latter. The respondent was all along

interested in paying or tendering the rent at the rate of Rs. 250/- p. m. till he filed

the petition under Section 8 of the Act and till the petitioners filed the petition under

Section 10 (2) of the Act. It was petitioner No. 2 who was all along refusing to

receive the rent at the rate of Rs. 250/- p. m. demanding more and more ranging

from Rs. 300/- to Rs. 1000/- and an advance of Rs. 5000/ -. Furthermore a strategic

method was adopted by petitioner No. 2 in neither conceding nor totally denying the

relation-ship of landlord and tenant between the petitioners and the respondent.

The fingers were always kept at cross till the eviction petition was filed. Petitioner

No. 2 refused the rent sent by money order inasmuch as the petitioners went to the

extent of resisting the genuine and bona fide attempt on the part of respondent in

depositing the rent by filing the petition under Section 8 of the Act. It is significant

to note that till the order of eviction was passed no permission was given to him to

deposit the rent under Section 8 of the Act. Throughout the petitioners uptil now,

canvassed for the rent being Rs. 1000/-p. m. and not at any rate of Rs. 250/- p. m.

Thereby the petitioners put the whole matter in uncertainty in a fluid state and kept

the respondent at bay in regard to his payment of rent. What all the deposits he

made into court were his own and only to show his bona fides. Strictly speaking if

these circumstances were accepted as sufficient grounds to hold that there was no

willful default on the part of the respondent in paying our tendering the rent, the

Rent Controller or the appellate court was bound to pass an order under Section 10

(2) (i) proviso of the Act that all the arrears of rent should be paid not later than 15

days from the date of the order as per the mandate in the statute. Since the rate of

rent was very much in dispute between the parties, if it had been determined even

assuming that there was an application under Section 11 (3) of the Act, if after

determination of such amount of rent and the arrears, the respondent would have

had the opportunity to pay such arrears of rent as determined and even where he

had failed to pay or deposit the same, he was entitled to show sufficient cause to

the contrary as to why all further proceedings should not be stopped and an order

directing him to put the petitioners in possession of the building should not be

passed by the Rent Controller under Section 11 (4) of the Act. In such a situation,

certain defaults pointed out by Mr. Sunder Rajan as against the respondent

regarding the payment of rent during the pendency of the proceedings in this case

can never operate as a ground for passing an order of eviction under Section 10 (2)

(i) proviso of the Act by giving a finding that there is willful default. On the other

hand, it is a fit case wherein, the Rent Controller, the appellate Court or this Court

can exercise the discretion under the proviso of Section 10 (2) (i) of the Act to reject

the eviction petition on such ground having been fully satisfied that there was no

default. The respondent can never be termed as a willful defaulter at any cost much

less at any rate a recalcitrant tenant, whereas all such adjectives should be put in

the converse as against the landlords. Therefore, judging the matter in any angle, it

was never a case for eviction of the respondent under Section 10 (2) (i) proviso of

the Act and to that extent, there is no reason to interfere with the findings of the

Rent Controller and the appellate Court.

( 33 ) AS rightly pointed out by Mr. Sunder Rajan the learned Advocate for the

petitioners, there is concurrent finding of the learned Rent Controller and the

learned Sub Judge on the question of sub-lease and the use of the building for the

purpose other than the one agreed upon between the parties and in regard to the

question of damage and waste to the demised premises as alleged by the

petitioners. Therefore, he vehemently contends that this court in its revisional

jurisdiction would not be justified in interfering with the same. According to him

both are the questions of fact which warrant no re-assessment or re-examination. In

support of this contention, he has depended upon M/s. Sri Raja Lakshmi Dyeing

Works v. Rangaswamy Chettiar AIR 1980 SC 1253 [LQ/SC/1980/143] . Mr. Narayan, the learned

Advocate for the respondent with equal vehemence contends that in the first place,

such questions in this case are not questions of fact much less mixed questions of

fact and law and strictly speaking they are pure questions of law having due regard

to the facts and circumstances of the case. Furthermore, he contends that such a

rule is not unexceptionable even from the ruling of the Supreme Court and also a

ruling of this Court depended upon by him viz. Mahboob Bi v. Alvala Lachmiah,

(1962) 2 Andh WR 148. The latter contention has all the force. The law appears to

be that the statutory revision under Section 22 of the Act is a jurisdiction specially

vested in the High Court in order to examine the record relating to any order passed

or the proceedings taken under the Act by the Rent Controller in execution under

Section 15 or by the appellate authority on appeal under Section 20 of the Act, for

the purpose of satisfying itself as to the legality, regularity or propriety of such order

or proceeding and may pass such order thereto as it thinks fit. Patently, it is

distinguishable from Section 115 of-C. P. C. as a revisional power. The limitations

and de-limitations of Section 115, of C. P. C. as enumerated therein in (a) to (c) and

in sub-clause (2), are not to be found in Section 22 of the Act. It is true that white

dealing with revisional powers of the High Court in Section 22 and the revisional

powers of the High Court in Tamil Nadu Buildings (Lease and Rent Control) Act,

I960, the Supreme Court in Raja Lakshmis case, AIR 1980 SC 1253 [LQ/SC/1980/143] held that where

there is concurrent finding based on evidence that the landlord did not bona fide

require the premises for his own use and occupation, it cannot be touched by the

high Court exercising jurisdiction under the said provision. It was stated that in such

a case, merely to hold that a question is a mixed question of law and fact is not

sufficient to warrant the exercise of revisional power. While referring to several

precedents on this question, it was observed therein as hereunder (attp. 1255 of

AIR): ". . . . . We do not think it is necessary for the purposes of this case to enter

into a discussion of this question. Merely to hold that a question is a mixed question

of fact and law is not sufficient to warrant the exercise of revisional power. It must,

however, be shown that there was a taint of such unreasonableness resulting in a

miscarriage of justice. "a" concurrent finding, based on evidence, that the landlord

did not bona fide require the premises for his own use and occupation is not in our

view a finding which can be touched by the High Court exercising jurisdiction under

Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960".

(Emphasis added) Patently, such a rule was laid on the facts of the case therein and

consequently not to lay down a general rule as such for all cases and to make it

clear that such a rule becomes exceptionable where it is shown that there-was a

taint of such unreasonableness resulting in a miscarriage of justice. That is why in

Mahboobs case (supra) it was held that: ". . . . . If the principles of natural justice

and fair play have been found to be violated, interference by the High Court would

certainly be within the province of the revisional powers conferred by Section 22,of

the A. P. Buildings Control Act. "therefore, in a given case, the High Court would

with all concern and caution examine I the facts and circumstances to warrant

interference in its revisional power under Section 22 of the Act to avoid miscarriage

of justice and to undo unjustice. If the postulation as presented by Mr. Sunder Rajan

is accepted, I the injustice if any perpetrated by the authorities under the Act, either

on facts or in law, would be indirectly supported by the High Court by merely

applying a mathematical formula not to interfere with the concurrent findings of the

authorities. However, we may hasten to add that just because such powers are

conferred to interfere under Section 22 of the Act, it will not be done as a matter of

routine.

( 34 ) SO, now we are to examine whether this court can interfere with such a

concurrent findings. The first of it being the alleged sublease and the use of the

building for the purpose other than the one for which the lease was agreed upon.

The learned Rent Controller has dealt with this question in para 17 of his judgment.

According to him, the evidence of petitioner No. 2 as P. W. 1 that one south eastern

room was let out to one Ramamurty to store tyres and another room, was let out to

some other for storing goods by the respondent without his permission is not

attacked specifically by the respondent except baldly denying the same and since

the respondent as R. W. 1 did not deny the same in his evidence, it has to be

concluded that the respondent sub-let the premises without the permission of the

landlord and used it for a purpose other than for which it was let out. The learned

Sub Judge appears to have dealt with this question in para 17 of his judgment which

is nothing but a reference to what the learned Rent Controller has said and agreeing

with such a finding without even considering the correctness or otherwise of such

discussions and the findings. Perhaps, he thought it a privilege as an appellate

authority not to give any reasons while agreeing with the findings. We are thus left

with only the reasoning and the findings of the learned Rent Controller for the

purpose of examining the correctness or otherwise of the same both in law and on

facts. On the face of it, para 17 of the judgment of the learned Rent Controller

warranted perusal of the entire records concerning the question. It appears that the

rule of non-traverse of pleadings under Order VIII, Rule 3 of C. P. C. and rule of

adverse inference under Section 114 of the Evidence Act appears to have been

adopted by the learned Rent Controller. Although not stated in so many words it is

totally against the pleadings and the evidence in this case. In para-7 of the petition,

it is alleged that the respondent also sub-let one room (previous office room) to one

driver for a considerable period and the other north western room for storing goods

and the room lying to the west of the hall on the northern side, for storing tyres (o

another, and that he is also liable to be evicted as he has used the building for the

purposes other than the ones agreed upon. That is all the pleadings in regard to

such a ground. No particulars as required under Order VI, Rule4 of CPC are

provided. Subletting or mis-use or non-user of the premises for the purpose for-

which it was let out, requires lot of facts and particulars, so that the tenant may

know as to how to answer it at appropriate stages. On the face of it, such an

allegation is very vague in para 7 of the petition. The name of the person to whom

there was sub-letting, the actual period for which it was sub-let, the terms under

which any portion or portions is/are sub-let are totally silent. Therefore, in the

counter at para 7, such allegations are generally and specifically denied. No specific

denial was necessary in the circumstances. How the rule of non-traverse could be

applied in such a case is not reasoned by the learned Rent Controller. In the context

of the discussion, the stress appears to be more in the non-traverse in the evidence

to draw adverse inference. The testimony of petitioner No. 2 in this regard is to the

effect that one south eastern room is let out to one Ramamurty to store tyres and

another room was let out to some others for storing goods by the respondent

without his permission. Beyond this, there is nothing in the evidence in support of

such vague statement. For the first time, the name of one Ramamurty occurred in

his testimony. That Ramamurty was not examined as a witness. The respondent

denied it in his testimony in clear terms in the examination-in-chief. So, a general

and vague allegation of the subtenancy or mis-user of the premises is generally

denied. It is true that petitioner No. 2 was not cross-examined regarding the said

statement. Similar is the case that not even one question was put to the respondent

in his cross-examination in this regard. Therefore, both of them stood in the same

situation in regard to a serious question of sub-letting or mis-user of the premises.

Then, how the learned Rent Controller could draw inferences against the respondent

is under-standable. Such inferences were applicable to both of them. Because the

initial burden of proving such allegations was upon the landlords. It was for them to

specifically allege in the petition and to testify before the court. Then the burden

would have shifted on to the respondent to demonstrate to the contra. On the face

of it, the interested and uncorroborated testimony of petitioner No. 2 in regard to

such serious allegations were insufficient and strictly speaking did not call for any

denial on the part of the respondent. If the rule of evidence (burden of proof) under

Sections 101 to 105 of the Evidence Act is applied, the petitioners were bound to fail

in regard to such allegations. That being the facts and the law in the case, the

expressions of the learned Rent Controller as above and the inference against the

respondent and the finding against him are totally unsupportable. The learned Sub

Judge played it safe by agreeing to spare himself all the pains to probe into the

matter. Demonstrably both of them were wrong and could never stand to support.

What could be better miscarriage of justice than this to examine such illegal findings

in revision

( 35 ) EVEN assuming for argument sake, that the entire evidence produced by the

petitioners which is said to be not seriously denied by the respondent is accepted in

addition to the allegations in the petition about the sub-letting and mis-user of the

premises, the question is whether the law will bring him such a ground to pass an

order of eviction. Patently, the law on the question is not at all considered or

decided by both the Courts below. Their approach appears to be presumptuous. The

matter thus requires a serious examination. Section 10 (2) (ii) (a) and (b) of the Act

reads; "10. Eviction of tenants: (1) xxx xxx xxx (2) xxxxxxxxxxxx (ii) that the tenant

has, in the Andhra Area, after the 23rd October, 1945 and in the Telangana area

after the commencement of the Hyderabad Houses Rent Control Order of 1353 Fasli,

without the written consent of the landlord (a) 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, or (b) used the building for a purpose other than that for

which it was leased, or. . . . "unless with the written consent of the landlord if a

tenant transfers his right under the lease or sub-lets the premises and uses the

building for the purpose there than that for which it was leased, he will be liable to

be evicted. This provision is practically in pari materia with Section 108 (j)of the

Transfer of Property Act which imposes a liability on the lessee in regard to the

lease. The expression sub-lease like lease goes without any definition in the Act,

There is no specific bar in any of the provisions of the Act to operate the relevant

provisions of the Transfer of Property Act which are not repugnant or inconsistent

with the provisions of the Act or the object and purpose of the Act. When similar

expressions are used as in Chapter V of the Transfer of Property Act in Section 10 of

the Act unless pari materia expressions are understood in such a context, the Courts

will be unable to decide the issues and rends fun justice. We have already dealt with

the definition of lease supra under Section 105 of the Transfer of Property Act. In

M/s. Heerachand Poonamchand HUF represented by Kartha Chainchand Chaliani v.

M/s. Kanchan Cycle Trading Co. , by Shankerlal Agarwal, (1990) I ALT 315 this

Court borrowed the meaning of rent for the purpose of the Act from Section 105 of

the Transfer of Property Act. In G. Manikyamma (died) by L. Rs. v. T.

Seetharamaiah, (1988) 2 ALT 333 this Court while dealing with applicability of C. P.

C. held that the provisions of the Code of Civil Procedure can be made applicable in

an eviction petition under the Act, so far they are not inconsistent with the

provisions of the Rent Control Act. In Soni alias Bhuthulasi v, Kunda Nageswara Rao,

(1991) 3 ALT 200 [LQ/TelHC/1991/20] the law was declared that the Code of Civil Procedure does apply

in a proceeding under the Act provided there was no adequate provision in the Act

or Rules and provided it does not offend the scheme and purpose of the Act.

Reliance was placed on Harikishan Singh v. B. Narayana, (1969) 2 AP LJ 290 in

support of such a view. The question is not left res integra in view of the approval of

such a view by the Full Bench of this Court in P. N. Rao v. K. Radha-

krishnamacharyulu, AIR 1978 Andh Pra 319. So, with the same analogy, particularly

when Chapter V of the Transfer of Property Act deals with leases, it is proper and

expedient to borrow the principles there from for the proceedings under the Act

unless such provisions are repugnant to the object and purpose of the Act and when

there is no adequate provision made in the Act to meet the requirement arising within

such similar expressions to achieve the real purpose and the objectives of the Act.

Added to this, there is neither specific bar nor a bar to be drawn with necessary

implications from any of the provisions of the Act that the provisions of the Transfer

of Property Act relating to leases cannot be made applicable to the proceedings

under the Act. This Court is thus of the considered view that there may not be any,

allergy in law under the Act to take support from the expressions in Chapter V of the

Transfer of Property Act subject to the limitations stated above. Although sub-

letting or sub-lease is the subject matter of the ground of eviction, legally it amounts

to transfer of the right under the lease by the tenant even according to the opening

expressions made in Section 10 (2) (ii) (a) of the Act. Technically speaking sub-lease

would be an assignment of the right of tenancy by the tenant or lessee in favour of

a person other than the landlord. The expression sub-lease is thus not defined in

the Transfer of Property Act. Because sublease is an assignment of a lesser term

and accordingly there is no privity of contract between the lesser and the sub-lessee

(Page 706 of the Mullas T. P. Act VI Edition ). But for a restraint under the Rent

Control Act on the act of assignment or transfer of lease on the lessee, without

written consent of the landlord a lease can be transferred in law. A -lease may be

granted by a person who is himself a lessee and such a lease is commonly called as

under lease, sub-lease or derivative-lease, but it is still a lease within the section

(Page 642) of Mullas T, P. Act supra ). This rule of English law has been made

applicable in India also as declared by the Supreme Court in The Mineral

Development Ltd. v. Union of India, AIR 1960 SC 1373 [LQ/SC/1960/183] , While dealing with a sub-

lease in the context of mining lease defined under Section 3 (d) and Sections 5,6

and 7 of the Mines and Minerals (Regulation and Development ). Act, 1948, it was

declared therein that mining lease includes a mining sub-lease. In that context a

sub-lease in law is held to be a lease within the meaning of Section 105 of the

Transfer of Property Act. In the very words of the supreme Court (at p. 1274 of

AIR): ". . . . The terms sub-lease under-lease1 and derivative lease are used

conveniently to indicate not only that the transfer is a lease but also that the

transferor is not the owner of the property but is a lessee; but the transfer as

between a lessee and a sub-lessee is none the less a lease provided it satisfies the

definition of Section 105. We may add that Chapter V of the Transfer of Property

Act, which deals with leases of immovable property has nowhere made any

distinction between a lease and a sub-lease and all the provisions of that Chapter

which apply to a lease also apply to a sub-lease. It is only when dealing with the

rights and liabilities of the lessee that Section 108 (j) of the. Transfer of Property Act

lays down that the lessee may transfer absolutely or by way of mortgage or sub-

lease the whole or any part of his interest in the property, and that is where one

finds mention of a sub-lease namely, that it is a lease by a person who is himself a

lessee. But the fact that the lessor is himself a lessee and the transaction between

him and the person in whose favour he makes the transfer by way of lease is called

a sublease does not in any way change the nature of the transfer as between them.

. . . . . " (Emphasis added)To conclude, the sub-lease or transfer of lease for the

purpose of Section 10 (2) (ii) (a) of the Act should be a lease within the meaning of

Section 105 of the Transfer of Property Act. In other words, a landlord alleging sub-

lease as a ground for eviction should prove all the ingredients of the lease under

Section 105 of the Transfer of Property Act. The Rent Controller is bound to examine

all such ingredients therein to be satisfied that the ground of sub-letting or transfer

of lease without the consent of the landlord has been made out by the landlord in

such a petition to draw an exception to the mandatory rule that a tenant shall not

be evicted within the meaning of Section 10 (1) of the Act. Neither assumptions nor

imaginations without evidence in the case of bringing out all such ingredients would,

be sufficient to pass an order of eviction such a ground. Patently such ingredients of

Section 105 of the Transfer of Property Act are never examined by the Courts below

in the light of the evidence produced by the petitioners. The allegations in the

petition and in the evidence, only mean that some portions in the premises had

been let out to somebody during some period. The name of one Ramamurty was

included as a sub-lessee later. It was said to be for the purpose of storing tyres and

other goods. Neither it is alleged nor proved that the respondent actually transferred

his right of lease to such a portion in favour of Ramamurty or anybody for a definite

period, express or implied or in perpetuity, for a consideration of a price paid or

promised or of money etc. , and that he had lost control over the same schedule

premises at any point of time. There is not even a whisper that there was a rate of

rent or premium between the parties payable in a particular manner subject to

certain terms and that the respondent actually collected it from such persons. Then

even assuming that in such a situation respondent could be the lessor, the

ingredients viz. , who was the lessee under sublease, when it commenced and when

it terminated or whether it is continuing or not, are totally silent. On the other hand,

the admitted circumstances in the case are against the theory of sub-lease or

transfer of lease in this case. Admittedly, the entire premises was lei out to one

Pulta Reddy to run a lodge and he was running it under the name and style mourya

Lodge. Later on, allegedly the respondent entered into possession and continued to

run the lodge with the name sangeeta Lodge and rightly or wrongly or otherwise,

has been continuing as a tenant therein for the same purpose. Although with little

reservations the lodging is said to contain several rooms which are used for hiring as

a lodge. The very expression lodging means that the accommodation in the

premises would be rented out to individuals on certain terms. The petitioners have

never spelt out as to what were those terms between them and Pulla Reddy to use

the premises as lodging either at a definite rental to the lodgers or for definite

duration. Even assuming that the respondent had rented out a room or portions of

the premises to certain members including one Ramamurty for any period, that was

within the very purpose of the lease viz. , lodging, to which the parties had

contracted. Then the question of sublease in favour of the lodgers by the

respondent could never arise. If the lodging itself is the sub-lease for a particular

purpose, then styling it sub-letting for the purpose of Section 10 (2) (ii) (a) of the

Act would be anathema of the legal intent therein. Thus, there is a travesty of the

real intent of law to call such a conduct of the respondent as amounting to sub-

letting when such a consistent finding was given by the Courts below. Apart from

that, on a careful examination of the facts and circumstances of the case, it is very

clear that such a ground of sub-letting must be a later thought and an outcome of

mala fides as could be made out from the conduct of petitioner No. 2. To repeat

again, the respondent was never recognised as a tenant although petitioner No. 2

was receiving rent from him; he was commanding him to pay more rent

unsuccessfully, allowed him to make repairs to the building at his expense and

adjusted the same towards certain portions of the rent and even when the

respondent filed R. C. C. 12/83 no such plea of sub-letting was raised and after a

long time perhaps as a counter blast to petition under Section 8 of the Act, such a

ground has been put up, obviously a half-hearted attempt, as can be made out from

the petition allegations and also the testimony of petitioner No. 2 which the Courts below accepted as a strong ground to pass an order of eviction against the

respondent. Neither such a finding nor the order of eviction based on that can be

supported to any extent.

( 36 ) AS regards the mis-user of the premises for a purpose than the one let out to

the respondent, the same reasoning and discussion as above would hold good. The

purpose of the lease was non-residential one and the premises was actually used as

a lodging by the respondent and his predecessors and such a purpose has never

changed throughout. If accidentally or incidentally a portion is allowed to be used to

store certain goods like tyres etc. , without inconsistent with the purpose of the

lease, that cannot amount to transgressing or violating the purpose of the lease.

The law in this regard to also not really examined or applied by the Courts below

and even that is taken for granted. A simple statement of law in this regard may be

useful. The precedents are plenty in regard to the; meaning of the using of a

building for the purpose other than that for which it was leased, viz. , ". . . . . . The

primary purpose for which the building was let out should be the determining factor

to decide whether the building is a residential or non-residential or whether such a

purpose had been changed". . . Where the main purpose for which the building was

taken is not changed by the tenant, the mere additional user will not come under

the ground of change of user. " (Extract of several precedents noted at pages 83-84

of the Commentary on Law of Rent Control in Andhra Pradesh by Mr. P. S. Narayana

3rd Edition 1995 ). It must be, with emphasis, concluded that the allegations and

the evidence in this case totally failed to bring out the ground of eviction in the

orders passed by the Courts below which are thus beyond the pale of law.

( 37 ) NOW coming to the ground of eviction under Section 10 (2) (iii) of the Act

alleging acts of waste as are likely to impair materially the value or the utility of the

building or premises, both the Courts have held in the affirmative. At the outset, we

should repeat the inference of mala fide conduct on the part of the petitioners in

regard to such a ground. As already pointed out in regard to raising grounds for

eviction, no such ground was thought over even when the counter was filed in R. C.

C. 12/83. For the first time a very vague and halfhearted allegation in that regard

came out in para 8 of the eviction petition. That has been specifically denied by the

respondent in the counter. The testimony of petitioner No. 2 in this regard in a

vague manner is also denied by the respondent on oath in his testimony. In spite of

this, the learned Rent Controller stated that this aspect of the evidence is not

challenged by the respondent and not denied in his evidence and applied the rule of

non-traverse again in regard to this ground also. For the same reasons as are

afforded while dealing with the ground of sub-letting as above and the improper

user, the reasoning and the finding of the learned Rent Controller which was readily

agreed upon by the learned Sub-Judge cannot be supported. Under the

circumstances it has become necessary for this Court to examine the materials on

record even without actually assessing the evidence. In this regard, the case of the

petitioners is that the respondent has dug up a pit just in front of the entrance of

the premises on the eastern side, he was illegally collecting water from the

municipal tap since 4 or 5 months and the pit is kept open and is not closed, he is

allowing lorry drums to be kept on the pial adjoining the eastern wall of the building

and on account of the same, the said wall is damaged and this amounts to acts of

waste and has become injurious to the value or the worth of the building. This being

the definite case was to be pursued by the petitioners by way of proof. Petitioner

No. 2 made a half-hearted testimony in this regard to the effect that the respondent

also got stored the oil barrels on the eastern pial of the house and as a result, the

eastern wall was damaged and that he sunk a pit near the eastern entrance of the

house illegally tapping water from the municipal lines since 4 or 5 months and,

however, it was closed later on. Consequently the premises or the whole building

has been under the control of the tenants ever since the time Pulla Reddy was the

tenant. It is nobodys case that the petitioners did anything in relation to the

maintenance or repairs or improvement to the building at any time. On the other

hand, it is in the evidence and also in the admissions of petitioner No. 2 throughout

that repairs were effected by the respondent, some alterations were also made,

even a portion of the amount spent by him was adjusted towards rent. The details

of them are available both in the pleadings and also in the evidence. In fact the

respondent claimed Rs. 15000/ - towards such repairs and the maintenance, and

produced lot of evidence in that regard, however, not finding favour with the Courts

of law except to a limited extent. Therefore, if the respondent had either stored

some barrels near a wall in the premises or had opened a sump/pit to store water in

the premises, it was part and parcel of the same conduct on his part as he did it in

so many acts in so many ways which were not opposed to by the petitioners at any

time and on the other hand, impliedly allowed ratified and expressly conceded to

some extent. More than that the report of the Commissioner dated 22-4-1992 which

has become part of the record since not objected to by the parties, failed to bring

out any such state of affairs in the premises much less any damage caused to such

a wall due to storing of the barrels or any other material near the wall as alleged

and spoken to by petitioner No. 2. There is not even a whisper in the

Commissioners report that any portion of the building is damaged to any extent. On

the other hand, it is reported therein that lot of improvements had been made in

room No. 3 with certain alterations by giving it a brand new look. Respondent had

replaced lot of electric fittings etc. , in room No. 3 and there is no other alteration.

This report totally rejects the plea of acts of waste as alleged or spoken to by

petitioner No. 2. But still both the Courts below have accepted such a theory. It is

true that the learned Rent Controller has made some discussions in this regard in

para. 18 of his judgment which is opposed to the evidence in the case and the

commissioners report. But the law operating upon such facts to bring home such a

ground is not at all considered by him. Even in that regard, the matter appears to

have been taken for granted. The expression acts of waste used in Section 10 (2)

(iii) of the Act is almost in pari materia with Section 108 (m) of the Transfer of

Property Act. For the same reasons supra, we are bound to make use of the law

declared in interpreting such expressions in the Transfer of Property Act. The

expression acts of waste is not defined either in the Rent Control Act or in Chapter

V of Transfer of Property Act. The term waste is said to be voluntary waste. e.

doing an act which is destructive of the premises; or permissive,. e. an omission to

make necessary repairs. The liability for permissive waste arises out of the obligation

under Section 108 (m) of the Transfer of Property Act to keep the property in a

good condition subject to fair wear and tear. This clause deals with voluntary waste

and imposes a liability similar to that imposed upon bailees by Sections 151 and 154

of the Indian Contract Act. An act which a person of ordinary prudence using his

own property would commit is not waste although it damages the property (para

722 of Mullas Transfer of Property Act mentioned supra 7th Edition ). It is true that

as laid down by the Supreme Court in Manmohandas v. Bishnudas, (1967) 1 SCR

836 : (AIR 1967 SC 643 [LQ/SC/1966/253] ) while dealing with a matter under Rent Control Act,

material alterations would mean important alterations such as those which

substantially change the front or the structure of the premises; it was immaterial

whether such alterations damaged the premises or diminished the value of the

premises or not. What are the substantial alterations which were likely to damage

the building or portion of it, which made it value-less or imparie the utility of the

building, are not either alleged or proved by the petitioners. On the other hand the

Commissioners report shows substantial improvement in the property by the

respondent without any detriment or impairment to the premises. In P. Damodaran

v. K. Loga-natha Chettiar, AIR 1956 Mad 54, number of illustrations are given to

explain acts of waste or otherwise to the demised premises, by the tenant. These

observations therein, in substance would be of great assistance to understand the

expression act of waste. In short, though changing the nature of the demised

premises is technically waste, yet this is not so if the change has been expressly

sanctioned by the lessor, and the mere change is not waste unless it is in fact

injurious to the inheritance, either by dismissing the value of the estate or by

increasing the burden upon it, or by impairing the evidence of title. At any rate, in

the case of acts which may be technically waste but in fact improve the inheritance-

acts, as they are termed, of ameliorating waste, the Court will not interfere to

restrain them by injunction, nor will they be a ground of forfeiture under a proviso

for re-entry on commission of waste; nor in general, can damages be recovered in

respect of them. But apparently a substantial alteration in the character of the

demised premises will be treated as waste and restrained by injunction

notwithstanding that the value will be thereby increased, and the lessee is not

entitled to pull down a house and build another which the lessor dislikes, or to

convert a dwelling house into a shop, and a breach of an express covenant against

making alterations or erecting new buildings will be enforced by injunction, To sum

up, to constitute voluntary waste by destruction of the premises, the destruction

must be willful or, negligent; it is not waste if the premises are destroyed In the

course of reasonable user, and any user is reasonable if it is for a purpose for which

the property was intended to be used, and if the mode and extent of the user if

apparently proper, having regard to the nature of the property and what the tenant

knows of it, and in the case of business premises, to what, as an ordinary business

man, he ought to know of it. It is not every act of waste on the part of the tenant

which will entitle the landlord to obtain an order of eviction and what should be the

nature and extent of the waste will depend on the circumstances of each case. Thus

Collecting water in a sump for a lodging for the use of the lodgers is not inconsistent

with the purpose of the lease unless it damages the building or impairs it in any

manner. It appears that the respondent was insisting to get water facility which the

petitioners did not oblige and therefore, he was to have his own arrangements in

this regard and in the course of it, a sump might have been opened and some water

barrels might have been stored. Even that is rectified. As already pointed out, the

Commissioners report is silent about any acts of waste or damage due to such an

alleged conduct of the respondent. That is a report of lot of improvement in the

premises which is an anti-thesis of the acts of waste. Even certain alterations

mentioned by the Commissioner in the report are not inconsistent with the security

of the building, preservation of its form and expression and on the other hand, the

Commissioner has praised the manner in which the respondent has made room No.

3 when petitioner No. 2 did not take any interest in the matter. Therefore, judged

the matter in any angle it was never a case of act of waste on the part of the

respondent in dealing with the demised premises. Such a ground for eviction was

totally against the facts and circumstances of the case, and the findings of the

Courts below in this regard deserve to be rejected.

( 38 ) PATENTLY, C. R. P. No. 538/94 has no merit. The petitioners-landlords have

successfully executed the order of eviction against the respondent-tenant by filing

O. E. P. No. 6/93 before the Principal District Munsif, Madanapalte who got it

executed through his order dated 9-2-1994. The grievance of the respondent is that

such an order of eviction could not have been passed to deliver possession of the

schedule premises to the petitioners when there is an order of stay passed by the

High Court which was also made absolute on 1-10-1993. Mr. Narayana, the learned

Advocate for the respondent has contended that the respondent had deposited all

the arrears of rent as per the orders of the Rent Controller and fulfilled the condition

of the interim order of stay passed by this Court and if there was any deficit in

payment of the dues it was due to bona fide mistake in the calculation of the dues

and the learned Rent Controller was not justified in passing the impugned order

without seeking clarification from the High Court. The order of the learned Rent

Controller is self-explanatory. It is based upon the admitted facts which are borne

out from the record of this Court also. In C. M. P. 10666/93 in C. R. P. 2348/93 the

respondent got an interim order of stay dated 9-7-1993 by this Court. It was a

conditional order directing stay of the execution of the eviction order subject to the

respondent depositing all the arrears of rent found by the Courts below within four

weeks from the date of the order. The time was extended in C. M. P. No. 1066/93

by two more weeks on 4-9-1993. The learned Rent Controller has found that the

respondent did not pay or deposit the arrears of rent as directed in the stay order in

spite of extension of time and therefore, the conditional order of stay stood thus

vacated. The memo of calculations dated 24-1-1994 filed by Mr. Sunderrajan

regarding the actual rent to be paid, is not disputed by Mr. Narayana, the learned

Advocate for the respondent-tenant nor he has filed any memo of calculations to

show that he had actually deposited all the arrears of rent within six weeks as a

whole from 9-7-1993. It is true that the rent was calculated at the rate of Rs. 500/-

p. m. from January, 1983 to December, 1993 amounting to Rs. 66,000/ -. That was

to be paid or deposited as per the directions of this Court in the interim order. He

had deposited only Rs. 59,250/ - leaving a balance/of Rs. 6,750/ -. Therefore, such

a stipulation in the order was patently not fulfilled if not violated. The order did not

thus enure to his benefit. The respondent did not obtain further extension of time

before the order of eviction was executed. The contention that the learned Munsif

ought to have sought for clarification of this Court is falacious. It was for the

respondent to seek such a clarification or extension of time if so advised. Although,

the rate of rent is found to be only Rs. 250/ - p. m. as above, as on the date of

execution of the order of eviction, the rate of rent judicially decided was Rs. 500/- p.

m. and the arrears of rent to be deposited on that basis was correctly taken into

account by the learned Munsif and for non-depositing of the same, the impugned

order of eviction in this revision petition was rightly passed. Although, the

consequences of holding the rate of rent at the rate of Rs. 500/- p. m. will have a

consequential result of annulling the order of eviction and the execution of the same

and further to have the consequences of restoration etc. , if need be, the order of

the learned District Munsif in execution petition cannot be called as illegal

warranting interference in the revision petition.

( 39 ) THE result to ensue, in consequence of the discussion supra is to set aside the

order of eviction passed by the Courts below against the respondent, by dismissing

the eviction petition. Mr. Narayana, points out that since the respondent-tenant is

made to pay double the rent in view of the illegal orders passed by the Courts

below, an order to refund the excess amount paid by him may be made, by

exercising the discretion under Section 115 of the Code of Civil Procedure and

furthermore, since the respondent is dispossessed by execution of the illegal order

of eviction, he is entitled to restoration of the possession of the demised premises

and for that purpose, an order either under Section 144 or under Section 151 of C.

P. C. may be passed. Mr. Sunderrajan, the learned Advocate for the petitioners has

contended that no such order can be passed since the respondent has to pursue his

remedies in accordance with law by filing a suit for recovery of such amount and the

possession of the demised premises, since no provisions similar to Section 144 of C.

P. C. is found in the Act and such an order cannot be passed under Section 151 C.

P. C. which involves an enquiry by the appropriate forum and a suitable order even

to the extent of working out equities between the parties prevailing at the relevant

time. The law is already declared to be settled that the provisions of C. P. C. can be

made applicable in a proceeding under the Act unless the are repugnant to the

object and purpose of the Act and when there is no adequate provision made in the

Act to meet the requirement arising in a particular situation vide G. Manikyamma

(1988 (2) ALT 333) (supra), Bhuthulasi (1991 (3) ALT 200 [LQ/TelHC/1991/20] ) (supra), Harikishan

(1969 (2) APLJ 290) (supra) and P. N. Rao (AIR 1978 Andh Pra 319) (FB) (supra ).

Patently there is no provision in the Act similar to Section 144 or 151 of C. P. C.

There is no adequate provisions in the Act to meet the ends of justice or to prevent

injustice caused due to certain consequences as in the present case to put back the

parties to the same position as they occupied. When such an illegal order was

passed. Patently, the respondent is made to pay twice the rate of rent than what he

was liable to pay to the petitioners which runs to thousands of rupees resulting in

suffering an order of eviction. The order of eviction is found to be illegal. It is

already made very clear that a land-lord is not entitled to get anything more than

the fair rent or the agreed rent or any rent which is found to be due in a particular

proceeding. Any recovery or collection beyond that, would be illegal and void. An

order passed to support such an illegal collection should be necessarily void. The

person who suffered such an order should be restored to original position. It is to

meet such a situation Section 144 of C. P. C. is incorporated. It included all the

reliefs of restoration back including the repayment of any excess recovery and the

Court is em- powered to make any order to restore back the parties in the position

which they would have occupied but for such a decree or order which is set aside in

the appeal, revision or any other proceeding. It is true that such an order can be

passed by the Court which passed the decree or order on the application of any

party entitled to any benefit by way of restitution or otherwise. Mr. Narayana, the

learned Advocate for the respondent has pointed out that although we may borrow

the principle of Section 144 of C. P. C. in this case for restitution of the respondent

to the same position as he occupied prior to passing of the orders by the Courts

below, it actually occurred not in the process of the normal execution of the decree

but because of the non-compliance of the conditions of an interim order passed by

this Court and such a consequence if found to be due to the illegal results, it can be

rectified only under Section 151 of C. P. C. although by adopting principle and the

procedure under Section 144 of C. P. C. This contention appears to be quite sound

and reasonable. The respondent has suffered the consequence of excess payment

of rent and the dispossession of the schedule premises regarding which he was

totally protected under the Act. In other words, he has suffered injustice at the

hands of the Courts below for no fault of his. The injustice commenced due to the

conduct of petitioner No. 2 at the inception and ended with the injustice due to the

impugned orders of the Courts below. In essence, there has been abuse of process

of Court for various reasons as above and there is miscarriage of justice and this

Court has to exercise its inherent powers to pass an order as may be necessary for

the ends of justice or otherwise, the parties would be driven to unnecessary

proceedings, expenses and agony in addition to wasting the precious time of the

Courts and authorities in such litigation, Section 151 of C. P. C. as is being so

familiar and repeatedly used or misused in Courts deserves to be read and noted

again and again viz. , "section 151: Nothing in this Code shall be deemed to limit or

otherwise affect the inherent power of the Court to make such orders as may be

necessary for the ends of justice or to prevent abuse of the process of the Court. "in

the considered opinion of this Court, this provision on the statute book has been the

encyclopedia of both procedural law and substantive justice saving the inherent

powers of the Court to pass such order as may be necessary to meet the ends of

justice or to prevent the abuse of process of the Court which is not circumscribed by

any of the provisions contained in the Code of Civil Procedure. In other words, this

provision has over-riding effect on all the other provisions of the Code of Civil

Procedure vesting absolute and unfettered inherent powers of the Court to pass any

order in such situation, however, within the province of the provision. That is what

this Court is going to do ultimately, Section 22 of the Act also empowers the High

Court in revision, can to pass such order as it thinks fit (to include an order in the

nature of Section 144 and Section 151 of CPC. ).

( 40 ) IN the result, C. R. P. 2348/93 and C. R. P. No. 2349/93 are allowed and C. R.

P. Nos. 2811/93, 3437/93 and 538/94 are dismissed. Consequently, the order of the

learned Sub Judge in C. M. A. No. 2/90 and 3/90 and the order of the Rent

Controller in R. C. C. Nos. 12/83 and 3/85 are set aside. In all such proceedings up

to this Court, the respondent-tenant shall be entitled to recover costs from the

petitioner-landlords. The respondent-tenant shall be entitled to the refund or to

recover all the rents paid to the petitioners in excess (at the rate) of Rs. 250/ -per

month, with interest at 12% per annum from the respective dates of payment till

the date of recovery. He shall also be entitled to be put into possession of the

demised premises. The respondent shall be entitled to execute this order against the

petitioners as if a decree is passed in his favour if the petitioners fail to pay him such

execessly recovered rent and fail to put him in possession of the demised premises

within a period of one month from today.

( 41 ) ORDER accordingly.