M/S. Nanded Wine Mart Vs. Suresh Shankarlal Dhoot - Court Judgment

Excerpt:
a) the petitioner against whom , an eviction on ground of default in payment of rent , contended that he was not a willful defaulter and the landlord practiced issuing of receipts but he failed to do so against the receipts of rent he got for the disputed period - the court held that the relevance of willful default is immaterial under the hyderabad houses(rent , eviction and lease ) control act, 1954 and the case needs consideration as per provisions of section 15(2)(i) of the act - in the light of the provisions , the tenant is required to pay rent to the landlord within 15 days of time specified in the agreement and otherwise by the last date of the month next following the month for which rent is payable - once the default is proved, the tenant is required to prove it as wilful and he can avail the benefit of the provisions only after discharging this burden - in the absence of any solid proof confirming payments made, it is concluded that there was a wilful default.;b) a contention against an eviction for default in timely payment of rent was raised that the rent was in fact paid, but the receipts were not issued by the landlord and that practice was to issue receipt after 4 to 5 months - the same was adjudged as not tenable by the court - it further provided that such a practice does not fit under scheme of the hyderabad houses(rent , eviction and lease ) control act, 1954 and violates the statutory provisions and the same cannot be accepted as a defence to the default as it is against the act.;c) the eviction was ordered on grounds of bona fide requirement of landlord and tenant has acquired alternative accommodation - the court ruled that the findings on these points being concurrent and based on proven facts, requires no interference. - - the other ground which has been made out by the petitioner/tenant is that there was a practice for making payment of accumulated rent of 3, 4 or 6 months and, therefore, the petitioner cannot be branded a wilful defaulter for non payment of the rent for july, 1979 to december, 1979. in order to support the said contention the petitioner relies on rent receipt dated 16-3-1978 for a period 1-4-1977 to 30-9-1977 and receipt dated 17-3-1978 for period 1-10-1977 to 31-3-1978. on the basis of these facts, the district judge has concluded that the petitioner is a defaulter as the petitioner has failed to make the payment of the rent for a period from july, 1979 to december, 1979. factually it has been observed by the district judge that if the rent for this period has been already paid by the tenant and the receipts have not been issued by the respondent/landlord, then in that eventuality the petitioner should have produced on record the evidence of his account books maintained in the shop w apart from that as the said amount was a disputed amount, it was open for the petitioner to deposit the said amount under protest when the petitioner deposited the amount before the rent controller for period january, 1980 to december, 1988 and january, 1989 to march, 1989 and thus that could have been reflected upon the conduct of the petitioner and if it is ultimately found that the said amount was already paid as contended by the petitioner/tenant, that amount could have been adjusted as against the rent, but the petitioner/tenant took a risk in not making the payment of the said amount under protest while the proceedings were going on and thereby ultimately failed to prove the payment of the said amount and, therefore, the fact stands that the petitioner is a defaulter of payment of rent from july, 1979 to december, 1979. his explanation that there was a practice of making payment of accumulated rent for 4 to 5 months or more is based on two receipts dated 16-3-1978 and 17-3-1978. however, further it is necessary to mention in the present matter that the theory of acceptance of the accumulated rent contended by the petitioner cannot be accepted, because factually the petitioner/tenant has failed to prove the payment of the said amount as stated earlier. it is also required to be considered that even though subsequent payments were deposited by the tenant, the tenant failed to deposit the amount for july, 1979 to december, 1979. 5. in the backdrop of these findings of fact, it is necessary to consider whether the tenant has committed default as required under section 15(2)(i) of the hyderabad houses (rent, eviction and lease) control act, 1954. the learned counsel mr. provided that in any case falling under clause (i), if the controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen 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. provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful. provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in section 11, give the tenant a reasonable time, not exceeding fifteen 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. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen 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, (vi)..the controller shall make an order directing the tenant to put the landlord in possession of the house, and if the controller is not so satisfied, he shall make an order, rejecting the application: provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. this contemplates that if there is an agreement to pay and/or tender the rent due on a fixed time, that the rent due shall be paid within fifteen days from the time specified in the agreement or contract and on such a failure the tenant will be defaulter. however, if the controller is not satisfied in respect of such default, he shall reject the application. the proviso states that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. - (a) that the landlord has proved the default as provided under clause (i); (b) that the controller is satisfied that the tenant's default to pay or tenderthe rent was not wilful. thus, before tenant could ask for benefit of the proviso, the tenant must claim and prove to the satisfaction of the controller that the tenant's default to pay or tender rent was not wilful and, therefore, in a case of a default the tenant has to come forward with an explanation and prove the said explanation so that the controller can be said to be satisfied that the tenant's default to pay or tender the rent was not wilful. therefore, the burden to prove that the tenant's default to pay or tender the rent was not wilful is on the tenant, because the circumstances and/or the facts as a result of which the tenant failed to pay rent and/or tender it are within the knowledge of the tenant which tenant can only allege and prove. in the instant case there is clear proof that the tenant committed default in the payment of rent and hence, it was the duty of the rent controller to get himself satisfied that the tenant's default was not wilful. the wording of the proviso clearly goes to show that the burden lies upon the tenant to show that his default is not wilful' all the above discussion thus will find out that in order to get an order of eviction of a tenant and/or a direction to the tenant to put the landlord in possession: secondly, the landlord has proved the default as per clause (i) but the tenant having satisfied the controller that his default to pay and/or tender the rent was not wilful, failed to tender and pay the rent to the landlord within reasonable time not exceeding 15 days as offered by the controller and. thirdly, having proved the default as per clause (i) and the tenant having pleaded the grounds that the default to pay or tender the rent was not wilful, failed to establish the said grounds and/or failed to satisfy the controller. 11. the landlord's application forgetting the possession of the premises on account of default will fail if landlord fails to prove default as per clause (i), landlord proves the default as per clause (i) of section 15(2) but tenant satisfies the controller that his default to pay or tender the rent was not wilful and that he deposited the amount of rent or tendered the same to the landlord within a reasonable time not exceeding 15 days as per the direction of the controller. however, having found that the petitioner has failed to prove the payment as observed earlier, the only inference follows that the landlord has established the default. - under section 10(2)(i) the controller shall make an order directing the tenant to put the landlord in possession of the building if the controller is satisfied that the tenant had 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 or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. if that condition is satisfied the controller has no option but to direct the tenant to put the landlord in possession of the building unless the matter is one which falls within the proviso. ' therefore, the ultimate analysis of the above fact coupled with the facts of the provisions and following the ratios referred to above is that the petitioner is a defaulter and that the petitioner has failed to prove that the default on his part in payment of rent and/or tendering the rent was not wilful. if such practice is accepted for any defence covered under the proviso, the main provision is permanently defeated and, therefore, such a practice which defeats the provision permanently and makes the law negatory cannot be accepted as an explanation for inferring the tenant as not a wilful defaulter. therefore, finally i find that the finding recorded by the district judge that the petitioner is a wilful defaulter and that he has failed to prove that he is not a wilful defaulter, is proper and 1 confirm the said finding. it is further observed that the respondent's liability is based on the said partnership business and that he is pulling well with the other partners.orders.b mhase, j.1. this revision under section 26 of the hyderabad houses (rent eviction and lease) control act, 1954 is directed against the order passed by the district judge, nanded in rent appeal hrca no. 28 of 1989, decided on 7-8-1990 wherein the said district judge dismissed the appeal filed by the petitioner and confirmed the order passed by the rent controller for eviction of the petitioner from the said premises on the grounds under section 15 (3)(a)(iii) and section 15(2)(v) of the hyderabad houses (rent, eviction and lease) control act, 1954 and also further allowed the cross objections filed by the respondent and granted an order of eviction in favour of the respondent on the ground under section 15(2)(i) of the said act.2. the petitioner is tenant of the suit premises bearing municipal no. 3-1-14 admeasuring 25 ft. to the east-west and 30 ft. north-south, situated at station road, nanded and agreed rent of the said premises is rs. 400/- per month and the petitioner entered the said premises as tenant in 1974. initially the respondent/landlord filed eviction proceedings bearing no. 88-mag-rca-13 before the rent controller, nanded claiming the eviction of the petitioner/tenant on following grounds:-i) wilful default (i.e. section 15(2)(i));ii) bona fide requirement for personal use (i.e. section 15(3)(a)(iii));iii) availability of the alternative accommodation with the petitioner (i.e. section 15(2)(iv)).iv) nuisance (i.e. section 15(2)(iv)).the rent controller by his judgment dated 17th july, 1989 passed order of eviction against the present petitioner on grounds that the premises are required by the respondent for bona fide personal use and that the alternative accommodation is available with the petitioner. so far as the grounds of default and nuisance are concerned, the rent controller has negatived the said grounds. however, in view of the order of eviction passed by the rent controller, the petitioner preferred the appeal before the district judge bearing hrca no. 28 of 1989. when that appeal was pending, the respondent/ landlord preferred cross objections challenging the findings of the rent controller on the points of wilful default and the nuisance. the district judge, while confirming the order of the eviction against the petitioner confirmed the findings of the rent controller on the point of bona fide personal use or requirement of the premises by the landlord and that the alternative accommodation has been secured by the tenant. the district judge reversed the finding of the rent controller on the point of wilful default and decided that the petitioner is a wilful defaulter. so far as the point of nuisance is concerned, the district judge confirmed the finding of the rent controller. in the result, presently the order of eviction from the suit premises stands against the petitioner on three grounds, namely, (i) requirement for bona fide personal use of the premises by the landlord; (ii) availability of the alternative accommodation of the premises with the tenant and (iii) that the tenant is a wilful defaulter. out of these three grounds, there is a concurrent finding on facts and law in respect of the bona fide personal requirement of the landlord and availability of the alternative accommodation with the petitioner/tenant.3. before proceeding to consider the points raised in the present matter, it requires to be stated that the learned counsel for the petitioner tried to raise the point that in a rent appeal the cross objections cannot be filed and that the district judge erred in entertaining the cross objections and reversing the finding in respect of the wilful default of the petitioner. however, this point was not pressed at a subsequent stage of the argument by the learned counsel for the petitioner and thus, the point was given up. under these circumstances, as the point was given up by the learned counsel for the petitioner, it is not considered in this judgment.4. so far as the wilful default is concerned the facts which are admitted and/or not in dispute can be stated as follows: that the petitioner entered in the suit premises in 1974 as a monthly tenant at the rent of rs. 400/-. that from 1974 till june, 1979 the rent has been paid by the petitioner/tenant and the rent receipts have been issued by the respondent/land lord. the application for eviction on account of default came to be filed for non payment of the rent from july, 1979 to december, 1979 amounting to rs. 2400/-. it is the case of the petitioner that the rent for this period has been paid to the respondent/landlord but the respondent/landlord has not issued receipts for the said period and, therefore, the petitioner started to send rent by money orders from january, 1980 and the money order coupons right up to 1987 have been filed on record. the rent for period january, 1980 to december, 1988 amounting to rs. 43,200/- has been deposited after filing of the written statement before the rent controller and that the said amount has been withdrawn by the landlord/respondent without prejudice to his claim for the rent due from july, 1979 to december, 1979 and case of default. further, the rent is deposited before the rent controller for a period january, 1989 to march, 1989 and the same has been also withdrawn by the landlord/respondent under protest, thus, it is evident that the rent from july, 1979 to december, 1979 is under dispute and the claim of the petitioner is that the said rent has been paid but the receipts have not been issued by the landlord. as against that the landlord contends that the rent for july, 1979 to december, 1979 has not been paid and thus the petitioner has committed a default which cannot be said to be not a wilful default and, therefore he is liable for eviction. the other ground which has been made out by the petitioner/tenant is that there was a practice for making payment of accumulated rent of 3, 4 or 6 months and, therefore, the petitioner cannot be branded a wilful defaulter for non payment of the rent for july, 1979 to december, 1979. in order to support the said contention the petitioner relies on rent receipt dated 16-3-1978 for a period 1-4-1977 to 30-9-1977 and receipt dated 17-3-1978 for period 1-10-1977 to 31-3-1978. on the basis of these facts, the district judge has concluded that the petitioner is a defaulter as the petitioner has failed to make the payment of the rent for a period from july, 1979 to december, 1979. factually it has been observed by the district judge that if the rent for this period has been already paid by the tenant and the receipts have not been issued by the respondent/landlord, then in that eventuality the petitioner should have produced on record the evidence of his account books maintained in the shop which is run by the petitioner in the suit premises. it is revealed from the record that only at the time of arguments the petitioner produced the account book of his shop under the application. however, the book of account cannot be considered because the debit entries in that account books were not proved in accordance with the law. simpliciter production of the book cannot be admitted in evidence without the proof of the contents of the said document. it is further observed by the district judge that on refusal to issue receipt after having accepted rent from july, 1979 to december, 1979 the petitioner should have insisted for the receipt from the respondent/landlord and for that purpose ought to have issued a notice to the respondent/landlord. however, such notice has not been issued and, therefore, the district judge has recorded a finding of fact that there is no evidence to prove that the rent for a period july, 1979 to december, 1979 was paid and the said finding is found to be proper one, because the learned counsel could not point out any error or illegality in recording the said finding by the district judge. apart from that as the said amount was a disputed amount, it was open for the petitioner to deposit the said amount under protest when the petitioner deposited the amount before the rent controller for period january, 1980 to december, 1988 and january, 1989 to march, 1989 and thus that could have been reflected upon the conduct of the petitioner and if it is ultimately found that the said amount was already paid as contended by the petitioner/tenant, that amount could have been adjusted as against the rent, but the petitioner/tenant took a risk in not making the payment of the said amount under protest while the proceedings were going on and thereby ultimately failed to prove the payment of the said amount and, therefore, the fact stands that the petitioner is a defaulter of payment of rent from july, 1979 to december, 1979. his explanation that there was a practice of making payment of accumulated rent for 4 to 5 months or more is based on two receipts dated 16-3-1978 and 17-3-1978. apart from these two receipts, when there was abundant evidence that consistently receipts have been issued by the landlord, the petitioner has failed to prove from all those receipts to prove the practice of accepting an accumulated rent. however, further it is necessary to mention in the present matter that the theory of acceptance of the accumulated rent contended by the petitioner cannot be accepted, because factually the petitioner/tenant has failed to prove the payment of the said amount as stated earlier. it is also required to be considered that even though subsequent payments were deposited by the tenant, the tenant failed to deposit the amount for july, 1979 to december, 1979.5. in the backdrop of these findings of fact, it is necessary to consider whether the tenant has committed default as required under section 15(2)(i) of the hyderabad houses (rent, eviction and lease) control act, 1954. the learned counsel mr. naik appearing for the petitioner heavily relied upon : [1985]2scr643 in the matter of sundaram pillai v. pattabiraman, and tried to convince that the petitioner is not wilful defaulter. it requires to be mentioned that the above referred judgment of the apex court has considered the a.p. buildings (lease, rent and eviction) control act, 1960, orissa house rent control act, 1958, pondicherry buildings (lease and rent control) act, 1969 in order to consider the provisions providing for a wilful default committed by the tenant and eviction. this provision has been considered with the more emphasis with the provision of the t.n. buildings (lease and rent control) act, 1960. what is pertinent to be noted is that a.p. act is having following proviso:'provided that in any case falling under clause (i), if the controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen 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.' the proviso to section 7(2) of the orissa act runs thus:'provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful....' similar is the case with the pondicherry act. the tamilnadu act is have following proviso and explanation:'provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in section 11, give the tenant a reasonable time, not exceeding fifteen 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. explanation: for the purposes of this sub-section, default to pay or tender rent shall be construed as wilful if the default by the tenant in the payment or tender of a rent continues after the issue of a two months notice by the landlord claiming the rent.'thus, ultimately considering these provisions and especially tamilnadu provisions, the apex court expressed view in para 63 as follows:'(1) where no notice is given by the landlord in terms of the explanation, the controller, having regard to the lour conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. if he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.(2) if the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord.'6. the four conditions spelt out by the apex court are in paragraph 43 of the said judgment. to sum up, a proviso may serve four different purposes:'(1) qualifying or excepting certain provisions from the main enactment;(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;(3) it may be so embedded in the act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'7. the provision of section 15(2)(i) of the hyderabad houses (rent, eviction and lease) control act, 1954 is as follows:-'(2) a landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen 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,(vi)..... the controller shall make an order directing the tenant to put the landlord in possession of the house, and if the controller is not so satisfied, he shall make an order, rejecting the application: provided that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender.'8. therefore, it is necessary to consider the scope of this provision and more specifically the scope of the proviso in the light of the above referred judgment of the apex court. it can be safely stated that there is no explanation added to this hyderabad act as it is added to tamilnadu act and, therefore, the question of a wilful default and/or not a wilful default will have to be considered as provided in item (i) of the above referred to para 7 of this judgment as if the notice to pay the rent has not been given.9. it will be also evident that the provisions are pari materia and/or substantially akin to the andhra pradesh act which is reproduced above. on a proper appreciation of this provision, it will be seen that the obligation to pay and/or tender the rent due is on tenant. this contemplates that if there is an agreement to pay and/or tender the rent due on a fixed time, that the rent due shall be paid within fifteen days from the time specified in the agreement or contract and on such a failure the tenant will be defaulter. if there is no time specified in the agreement for the payment of the rent due, then in that eventuality the tenant shall pay the rent by the last day of the month next following that for which the rent is payable and if the rent is not paid by the last day of the month next following that for which the rent is payable, then the tenant becomes a defaulter. thus, in the first contingency tenant becomes a defaulter on completion of fifteen days from the time specified for the payment of the rent due in the agreement and in the absence of such agreement a tenant becomes a defaulter on completion of 30 days of the next following month of the due rent of the earlier month.10. the act contemplates that if such a default is committed, the controller shall make an order directing the tenant to put the landlord in possession. however, if the controller is not satisfied in respect of such default, he shall reject the application. the proviso states that in any case falling under clause (i) if the controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. thus the proviso comes into play in following circumstances:-(a) that the landlord has proved the default as provided under clause (i);(b) that the controller is satisfied that the tenant's default to pay or tenderthe rent was not wilful.thus, if the simpliciter first circumstance is proved but if there is no second circumstance proved, the proviso does not come into play and the controller has to pass an order of evicting the tenant and/or directing the tenant to put the landlord in possession. thus, before tenant could ask for benefit of the proviso, the tenant must claim and prove to the satisfaction of the controller that the tenant's default to pay or tender rent was not wilful and, therefore, in a case of a default the tenant has to come forward with an explanation and prove the said explanation so that the controller can be said to be satisfied that the tenant's default to pay or tender the rent was not wilful. in the absence of such a plea and the explanation and proof of the same, the controller has to pass an order directing the tenant to put the landlord in possession of the premises and, therefore, on a proper analysis of the provision in respect of the default and wilful default, it will be evident that the proviso in the present case qualifies main enactment and it is so embodied in the act itself to become an integral part of the enactment and thus acquire a tenor and colour of substantive enactment. the ultimate analysis, therefore, is that whenever the rent controller finds that the default as provided under clause (i) of sub-section 15(2) is established, the rent controller shall find out as to whether the tenant has offered any explanation and/or has pointed out any facts which may point out that the tenant's default to pay or tender the rent was not wilful and whether the said explanation or the facts have been proved and established by the tenant and thereafter the controller will have to consider whether such explanation and the established fact is sufficient to satisfy the controller that the tenant's default to pay or tender the rent was not wilful. therefore, the burden to prove that the tenant's default to pay or tender the rent was not wilful is on the tenant, because the circumstances and/or the facts as a result of which the tenant failed to pay rent and/or tender it are within the knowledge of the tenant which tenant can only allege and prove. therefore, even though prima facie it appears to be negative burden, factually and in reality it is a positive burden on the tenant. this court in the matter of sashikant v. mohd. naeemuddin and another, reported in : 1985(1)bomcr403 has observed after re-producing the relevant part of the proviso, as under:'in the instant case there is clear proof that the tenant committed default in the payment of rent and hence, it was the duty of the rent controller to get himself satisfied that the tenant's default was not wilful. the wording of the proviso clearly goes to show that the burden lies upon the tenant to show that his default is not wilful'all the above discussion thus will find out that in order to get an order of eviction of a tenant and/or a direction to the tenant to put the landlord in possession:firstly, the landlord shall prove that the tenant has committed default as stated in clause (i) and has not pleaded and/or offered any explanation to the satisfaction of the controller that is default to pay or tender the rent was not wilful;secondly, the landlord has proved the default as per clause (i) but the tenant having satisfied the controller that his default to pay and/or tender the rent was not wilful, failed to tender and pay the rent to the landlord within reasonable time not exceeding 15 days as offered by the controller and.thirdly, having proved the default as per clause (i) and the tenant having pleaded the grounds that the default to pay or tender the rent was not wilful, failed to establish the said grounds and/or failed to satisfy the controller.11. the landlord's application forgetting the possession of the premises on account of default will fail if landlord fails to prove default as per clause (i), landlord proves the default as per clause (i) of section 15(2) but tenant satisfies the controller that his default to pay or tender the rent was not wilful and that he deposited the amount of rent or tendered the same to the landlord within a reasonable time not exceeding 15 days as per the direction of the controller. this is analyzed for the purpose to show that how the proviso is embodied in the act itself to become an integral part of the enactment and thus, is the substantive provision. as per the apex court, the controller is required to look into this aspect of the matter while construing the matter as referred to earlier. thus, i find that only in the above circumstances the application for eviction on count of default can be allowed and/or rejected.12. in the present matter as earlier stated, the payment of the rent due and payable from july, 1979 to december, 1979 has not been paid by the petitioner. the petitioner states that he has paid the said rent but the receipts are not issued by the landlord. however, having found that the petitioner has failed to prove the payment as observed earlier, the only inference follows that the landlord has established the default. the other explanation that there was a practice of payment after 5 to 6 months cannot be accepted because the petitioner has not established the said practice. two receipts which are referred to by the petitioner cannot establish a practice as there is no consistency of an act so as to term as practice. apart from that this cannot be accepted because the case of a payment being made and that there was a practice to pay the rent after 5 to 6 months are inconsistent and self-contradictory. moreover, as observed earlier that the provisions of the hyderabad act and andhra pradesh act are pari materia same, the ratio of the full bench judgment of the andhra pradesh high court in the matter of p.n. rao and another v. k. radhakrishnamachryulu, reported in : air1978ap319 has application, wherein it is observed:-'under section 10(2)(i) the controller shall make an order directing the tenant to put the landlord in possession of the building if the controller is satisfied that the tenant had 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 or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. on a plain reading of this section it is clear that all that the controller has to see is whether the rent due was not paid or tendered within 15 days after the expiry of the time fixed in the agreement. if there is no such agreement he has to see whether the rent was not paid before the last day of the month next following that for which the rent is payable. if that condition is satisfied the controller has no option but to direct the tenant to put the landlord in possession of the building unless the matter is one which falls within the proviso. under the proviso, if the tenant's default was not wilful, the controller may 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 and on such payment or tender, the application shall be rejected. the moment the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no such agreement before the last day of the month next following that for which rent is payable there is a default and a right on the part of the landlord to have the tenant evicted arises subject only to the proviso. there is nothing in this section which enables the tenant to contend that the right is lost merely because he pays or tenders the rent due by him subsequently.'therefore, the ultimate analysis of the above fact coupled with the facts of the provisions and following the ratios referred to above is that the petitioner is a defaulter and that the petitioner has failed to prove that the default on his part in payment of rent and/or tendering the rent was not wilful. 13. in earlier part of the judgment the tenant's explanation that there was a practice of making payment of accumulated rent for 4 to 5 months has been considered and has been negatived. it further requires to be considered that such an explanation cannot be accepted and is not fit within the scheme of the provision pertaining to default as discussed above. the obligation to pay the rent and/or tender the rent is of tenant and, therefore, the tenant will not pay the rent for 2 to 3 months and will come forward for accumulated rent. in that eventuality, if the rent is not accepted, it will be a case of rent tendered and not accepted and if the landlord accepts the rent it leads to a practice of accepting the accumulated rent and thereby the landlord is put to an adverse position and on either count the landlord suffers. a net result of this is that the statutory provisions are negatived. because in that eventuality clause (i) of section 15(2) of the hyderabad houses (rent, eviction and lease) control act, 1954, which has been considered thoroughly above will not come into play in any eventuality. it is further necessary to mention that once the court accepts that there is a practice of paying accumulated rent, then in future that landlord will never be entitled to get the possession of the property even if the defaults as contemplated under clause (i) of section 15(2) of the act have been committed by the tenant. because, whenever the landlord comes for possession on such a ground, the explanation will be such practice. net result, therefore, is that the practice of payment of accumulated rent cannot be accepted by way of explanation or defence to infer that the default was not wilful default. if such practice is accepted for any defence covered under the proviso, the main provision is permanently defeated and, therefore, such a practice which defeats the provision permanently and makes the law negatory cannot be accepted as an explanation for inferring the tenant as not a wilful defaulter. if a man claims the benefit of the statutory provisions, then he is equally under an obligation to discharge his statutory duty initially. however, the plea of practice of a payment of accumulated rent to be paid by the tenant shows that basically the tenant fails to discharge his statutory duty as provided under clause (i) of section 15(2) of the act but claims the benefit of the proviso, which is against the settled principles of law.14. the learned counsel also relied upon and referred to : air1992sc184 d.c. oswal v. v.k. subbiah,. this case, as has been observed in : [1985]2scr643 is under the tamilnadu act and as the provisions of tamilnadu act pertaining to default are different than the present act and/or the andhra pradesh act, it would not be appropriate to follow the said judgment. therefore, finally i find that the finding recorded by the district judge that the petitioner is a wilful defaulter and that he has failed to prove that he is not a wilful defaulter, is proper and 1 confirm the said finding.15. so far as the other findings are concerned, they are concurrent findings. both the courts below have observed that the respondent is running a partnership business in the name and style 'bombay machinery stores' and that the respondent is having 25% share. it has been further found that the said partnership business is located in the premises of one sardar kundansingh and that he had issued a notice of eviction through advocate. it is further observed that the respondent's liability is based on the said partnership business and that he is pulling well with the other partners. the story that the business belongs to the joint family as contended by the petitioner has been negatived by the courts below. under these circumstances the findings have been recorded that the respondent bona fide requires the premises for the purposes of running his business. while recording these findings the share of the respondent in vijaylaxmi engineering and agricultural engineering co. to the extent of 20% and 16% have been also considered by the courts below. it has been also considered that except the present premises, the respondent is not possessed of any premises wherein he can carry on this non-residential activity. the other premises which are in possession of the respondent/landlord are the residential premises away from the market place. the learned counsel appearing for the petitioner submitted, however, that since the day of filing of the eviction proceedings, nothing wrong has happened to the partnership firm of the respondent and, therefore, it is a simpliciter apprehension of the respondent and, therefore, his requirement cannot be said to be bona fide. i am not in agreement with the said submission. i find that the finding recorded by both the authorities below on the point of bona fide requirement of the landlord of the said premises is proper one.16. so far as the alternative accommodation is available with the tenant is concerned, it is evident from the findings recorded by both the authorities below that initially the petitioner was running a liquor shop in the suit premises in partnership with his son karsi. thereafter in 1986 karsi started another wine shop after retiring from this firm of the petitioner, namely, nanded wine mart. it is further revealed that in place of the son karsi, the petitioner introduced son beju. it is to be noted that son karsi is residing in deelipsingh colony and the petitioner is residing with him. even the petitioner tried to contend that he is residing with beju, voters list, etc. produced on record show that the petitioner and his sons are residing in the same house. the story of the partition as claimed by the petitioner has been negatived by the rent controller, because the document of the partition was not registered one. it is further noticed that and admitted by the petitioner that he is running the wholesale dealership of the liquor in the name and style 'nanded wine traders' in wajegaon in partnership with his son beju and one rajkumar mukkarwar. thus, it will be revealed that the petitioner and his son beju are carrying out the business in the suit premises in the name and style nanded wine mart. his son karsi is running natraj wine mart and that the petitioner and his son beju are carrying out a wholesale business of wine in the name of nanded wine traders and all these business are of the joint family of the petitioner. even though the partnership documents have been prepared, the partners are the members of the family as analyzed by the trial courts and, therefore, both the courts have rightly observed that there is alternative accommodation available with the petitioner and, therefore, have passed the order of eviction.17. in the result, there is no substance in the revision application. the revision application is hereby dismissed. however, the petitioners are hereby granted six months time to vacate the premises, failing which the respondent to proceed for the execution of the orders confirmed. cost in the cause.18. revision application dismissed.

Judgment:
ORDER

S.B Mhase, J.

1. This Revision under section 26 of the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 is directed against the order passed by the District Judge, Nanded in Rent Appeal HRCA No. 28 of 1989, decided on 7-8-1990 wherein the said District Judge dismissed the appeal filed by the petitioner and confirmed the order passed by the Rent Controller for eviction of the petitioner from the said premises on the grounds under section 15 (3)(a)(iii) and section 15(2)(v) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 and also further allowed the cross objections filed by the respondent and granted an order of eviction in favour of the respondent on the ground under section 15(2)(i) of the said Act.

2. The petitioner is tenant of the suit premises bearing Municipal No. 3-1-14 admeasuring 25 ft. to the east-west and 30 ft. north-south, situated at Station Road, Nanded and agreed rent of the said premises is Rs. 400/- per month and the petitioner entered the said premises as tenant in 1974. Initially the respondent/landlord filed eviction proceedings bearing No. 88-MAG-RCA-13 before the Rent Controller, Nanded claiming the eviction of the petitioner/tenant on following grounds:-

i) wilful default (i.e. section 15(2)(i));

ii) Bona fide requirement for personal use (i.e. section 15(3)(a)(iii));

iii) Availability of the alternative accommodation with the petitioner (i.e. section 15(2)(iv)).

iv) Nuisance (i.e. section 15(2)(iv)).

The Rent Controller by his judgment dated 17th July, 1989 passed order of eviction against the present petitioner on grounds that the premises are required by the respondent for bona fide personal use and that the alternative accommodation is available with the petitioner. So far as the grounds of default and nuisance are concerned, the Rent Controller has negatived the said grounds. However, in view of the order of eviction passed by the Rent Controller, the petitioner preferred the appeal before the District Judge bearing HRCA No. 28 of 1989. When that appeal was pending, the respondent/ landlord preferred cross objections challenging the findings of the Rent Controller on the points of wilful default and the nuisance. The District Judge, while confirming the order of the eviction against the petitioner confirmed the findings of the Rent Controller on the point of bona fide personal use or requirement of the premises by the landlord and that the alternative accommodation has been secured by the tenant. The District Judge reversed the finding of the Rent Controller on the point of wilful default and decided that the petitioner is a wilful defaulter. So far as the point of nuisance is concerned, the District Judge confirmed the finding of the Rent Controller. In the result, presently the order of eviction from the suit premises stands against the petitioner on three grounds, namely, (i) requirement for bona fide personal use of the premises by the landlord; (ii) availability of the alternative accommodation of the premises with the tenant and (iii) that the tenant is a wilful defaulter. Out of these three grounds, there is a concurrent finding on facts and law in respect of the bona fide personal requirement of the landlord and availability of the alternative accommodation with the petitioner/tenant.

3. Before proceeding to consider the points raised in the present matter, it requires to be stated that the learned Counsel for the petitioner tried to raise the point that in a rent appeal the cross objections cannot be filed and that the District Judge erred in entertaining the cross objections and reversing the finding in respect of the wilful default of the petitioner. However, this point was not pressed at a subsequent stage of the argument by the learned Counsel for the petitioner and thus, the point was given up. Under these circumstances, as the point was given up by the learned Counsel for the petitioner, it is not considered in this judgment.

4. So far as the wilful default is concerned the facts which are admitted and/or not in dispute can be stated as follows: That the petitioner entered in the suit premises in 1974 as a monthly tenant at the rent of Rs. 400/-. That from 1974 till June, 1979 the rent has been paid by the petitioner/tenant and the rent receipts have been issued by the respondent/land lord. The application for eviction on account of default came to be filed for non payment of the rent from July, 1979 to December, 1979 amounting to Rs. 2400/-. It is the case of the petitioner that the rent for this period has been paid to the respondent/landlord but the respondent/landlord has not issued receipts for the said period and, therefore, the petitioner started to send rent by money orders from January, 1980 and the money order coupons right up to 1987 have been filed on record. The rent for period January, 1980 to December, 1988 amounting to Rs. 43,200/- has been deposited after filing of the written statement before the Rent Controller and that the said amount has been withdrawn by the landlord/respondent without prejudice to his claim for the rent due from July, 1979 to December, 1979 and case of default. Further, the rent is deposited before the Rent Controller for a period January, 1989 to March, 1989 and the same has been also withdrawn by the landlord/respondent under protest, Thus, it is evident that the rent from July, 1979 to December, 1979 is under dispute and the claim of the petitioner is that the said rent has been paid but the receipts have not been issued by the landlord. As against that the landlord contends that the rent for July, 1979 to December, 1979 has not been paid and thus the petitioner has committed a default which cannot be said to be not a wilful default and, therefore he is liable for eviction. The other ground which has been made out by the petitioner/tenant is that there was a practice for making payment of accumulated rent of 3, 4 or 6 months and, therefore, the petitioner cannot be branded a wilful defaulter for non payment of the rent for July, 1979 to December, 1979. In order to support the said contention the petitioner relies on rent receipt dated 16-3-1978 for a period 1-4-1977 to 30-9-1977 and receipt dated 17-3-1978 for period 1-10-1977 to 31-3-1978. On the basis of these facts, the District Judge has concluded that the petitioner is a defaulter as the petitioner has failed to make the payment of the rent for a period from July, 1979 to December, 1979. Factually it has been observed by the District Judge that if the rent for this period has been already paid by the tenant and the receipts have not been issued by the respondent/landlord, then in that eventuality the petitioner should have produced on record the evidence of his account books maintained in the shop which is run by the petitioner in the suit premises. It is revealed from the record that only at the time of arguments the petitioner produced the account book of his shop under the application. However, the book of account cannot be considered because the debit entries in that account books were not proved in accordance with the law. Simpliciter production of the book cannot be admitted in evidence without the proof of the contents of the said document. It is further observed by the District Judge that on refusal to issue receipt after having accepted rent from July, 1979 to December, 1979 the petitioner should have insisted for the receipt from the respondent/landlord and for that purpose ought to have issued a notice to the respondent/landlord. However, such notice has not been issued and, therefore, the District Judge has recorded a finding of fact that there is no evidence to prove that the rent for a period July, 1979 to December, 1979 was paid and the said finding is found to be proper one, because the learned Counsel could not point out any error or illegality in recording the said finding by the District Judge. Apart from that as the said amount was a disputed amount, it was open for the petitioner to deposit the said amount under protest when the petitioner deposited the amount before the Rent Controller for period January, 1980 to December, 1988 and January, 1989 to March, 1989 and thus that could have been reflected upon the conduct of the petitioner and if it is ultimately found that the said amount was already paid as contended by the petitioner/tenant, that amount could have been adjusted as against the rent, but the petitioner/tenant took a risk in not making the payment of the said amount under protest while the proceedings were going on and thereby ultimately failed to prove the payment of the said amount and, therefore, the fact stands that the petitioner is a defaulter of payment of rent from July, 1979 to December, 1979. His explanation that there was a practice of making payment of accumulated rent for 4 to 5 months or more is based on two receipts dated 16-3-1978 and 17-3-1978. Apart from these two receipts, when there was abundant evidence that consistently receipts have been issued by the landlord, the petitioner has failed to prove from all those receipts to prove the practice of accepting an accumulated rent. However, further it is necessary to mention in the present matter that the theory of acceptance of the accumulated rent contended by the petitioner cannot be accepted, because factually the petitioner/tenant has failed to prove the payment of the said amount as stated earlier. It is also required to be considered that even though subsequent payments were deposited by the tenant, the tenant failed to deposit the amount for July, 1979 to December, 1979.

5. In the backdrop of these findings of fact, it is necessary to consider whether the tenant has committed default as required under section 15(2)(i) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. The learned Counsel Mr. Naik appearing for the petitioner heavily relied upon : [1985]2SCR643 in the matter of Sundaram Pillai v. Pattabiraman, and tried to convince that the petitioner is not wilful defaulter. It requires to be mentioned that the above referred judgment of the Apex Court has considered the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, Orissa House Rent Control Act, 1958, Pondicherry Buildings (Lease and Rent Control) Act, 1969 in order to consider the provisions providing for a wilful default committed by the tenant and eviction. This provision has been considered with the more emphasis with the provision of the T.N. Buildings (Lease and Rent Control) Act, 1960. What is pertinent to be noted is that A.P. Act is having following proviso:

'Provided that in any case falling under Clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen 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.'

The proviso to section 7(2) of the Orissa Act runs thus:

'Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful....'

Similar is the case with the Pondicherry Act. The Tamilnadu Act is have following proviso and explanation:

'Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in section 11, give the tenant a reasonable time, not exceeding fifteen 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.

Explanation: For the purposes of this sub-section, default to pay or tender rent shall be construed as wilful if the default by the tenant in the payment or tender of a rent continues after the issue of a two months notice by the landlord claiming the rent.'

Thus, ultimately considering these provisions and especially Tamilnadu provisions, the Apex Court expressed view in para 63 as follows:

'(1) Where no notice is given by the landlord in terms of the Explanation, the Controller, having regard to the lour conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.

(2) If the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord.'

6. The four conditions spelt out by the Apex Court are in paragraph 43 of the said judgment. To sum up, a proviso may serve four different purposes:

'(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'

7. The provision of section 15(2)(i) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 is as follows:-

'(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen 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,

(vi)..... the Controller shall make an order directing the tenant to put the landlord in possession of the house, and if the Controller is not so satisfied, he shall make an order, rejecting the application: Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender.'

8. Therefore, it is necessary to consider the scope of this provision and more specifically the scope of the proviso in the light of the above referred judgment of the Apex Court. It can be safely stated that there is no explanation added to this Hyderabad Act as it is added to Tamilnadu Act and, therefore, the question of a wilful default and/or not a wilful default will have to be considered as provided in item (i) of the above referred to para 7 of this judgment as if the notice to pay the rent has not been given.

9. It will be also evident that the provisions are pari materia and/or substantially akin to the Andhra Pradesh Act which is reproduced above. On a proper appreciation of this provision, it will be seen that the obligation to pay and/or tender the rent due is on tenant. This contemplates that if there is an agreement to pay and/or tender the rent due on a fixed time, that the rent due shall be paid within fifteen days from the time specified in the agreement or contract and on such a failure the tenant will be defaulter. If there is no time specified in the agreement for the payment of the rent due, then in that eventuality the tenant shall pay the rent by the last day of the month next following that for which the rent is payable and if the rent is not paid by the last day of the month next following that for which the rent is payable, then the tenant becomes a defaulter. Thus, in the first contingency tenant becomes a defaulter on completion of fifteen days from the time specified for the payment of the rent due in the agreement and in the absence of such agreement a tenant becomes a defaulter on completion of 30 days of the next following month of the due rent of the earlier month.

10. The Act contemplates that if such a default is committed, the Controller shall make an order directing the tenant to put the landlord in possession. However, if the Controller is not satisfied in respect of such default, he shall reject the application. The proviso states that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. Thus the proviso comes into play in following circumstances:-

(a) that the landlord has proved the default as provided under Clause (i);

(b) that the Controller is satisfied that the tenant's default to pay or tenderthe rent was not wilful.

Thus, if the simpliciter first circumstance is proved but if there is no second circumstance proved, the proviso does not come into play and the Controller has to pass an order of evicting the tenant and/or directing the tenant to put the landlord in possession. Thus, before tenant could ask for benefit of the proviso, the tenant must claim and prove to the satisfaction of the Controller that the tenant's default to pay or tender rent was not wilful and, therefore, in a case of a default the tenant has to come forward with an explanation and prove the said explanation so that the Controller can be said to be satisfied that the tenant's default to pay or tender the rent was not wilful. In the absence of such a plea and the explanation and proof of the same, the Controller has to pass an order directing the tenant to put the landlord in possession of the premises and, therefore, on a proper analysis of the provision in respect of the default and wilful default, it will be evident that the proviso in the present case qualifies main enactment and it is so embodied in the Act itself to become an integral part of the enactment and thus acquire a tenor and colour of substantive enactment. The ultimate analysis, therefore, is that whenever the Rent Controller finds that the default as provided under Clause (i) of sub-section 15(2) is established, the Rent Controller shall find out as to whether the tenant has offered any explanation and/or has pointed out any facts which may point out that the tenant's default to pay or tender the rent was not wilful and whether the said explanation or the facts have been proved and established by the tenant and thereafter the Controller will have to consider whether such explanation and the established fact is sufficient to satisfy the Controller that the tenant's default to pay or tender the rent was not wilful. Therefore, the burden to prove that the tenant's default to pay or tender the rent was not wilful is on the tenant, because the circumstances and/or the facts as a result of which the tenant failed to pay rent and/or tender it are within the knowledge of the tenant which tenant can only allege and prove. Therefore, even though prima facie it appears to be negative burden, factually and in reality it is a positive burden on the tenant. This Court in the matter of Sashikant v. Mohd. Naeemuddin and another, reported in : 1985(1)BomCR403 has observed after re-producing the relevant part of the proviso, as under:

'In the instant case there is clear proof that the tenant committed default in the payment of rent and hence, it was the duty of the Rent Controller to get himself satisfied that the tenant's default was not wilful. The wording of the proviso clearly goes to show that the burden lies upon the tenant to show that his default is not wilful'

All the above discussion thus will find out that in order to get an order of eviction of a tenant and/or a direction to the tenant to put the landlord in possession:

firstly, the landlord shall prove that the tenant has committed default as stated in Clause (i) and has not pleaded and/or offered any explanation to the satisfaction of the Controller that is default to pay or tender the rent was not wilful;

secondly, the landlord has proved the default as per Clause (i) but the tenant having satisfied the Controller that his default to pay and/or tender the rent was not wilful, failed to tender and pay the rent to the landlord within reasonable time not exceeding 15 days as offered by the Controller and.

thirdly, having proved the default as per Clause (i) and the tenant having pleaded the grounds that the default to pay or tender the rent was not wilful, failed to establish the said grounds and/or failed to satisfy the Controller.

11. The landlord's application forgetting the possession of the premises on account of default will fail if landlord fails to prove default as per Clause (i), landlord proves the default as per Clause (i) of section 15(2) but tenant satisfies the Controller that his default to pay or tender the rent was not wilful and that he deposited the amount of rent or tendered the same to the landlord within a reasonable time not exceeding 15 days as per the direction of the Controller. This is analyzed for the purpose to show that how the proviso is embodied in the Act itself to become an integral part of the enactment and thus, is the substantive provision. As per the Apex Court, the Controller is required to look into this aspect of the matter while construing the matter as referred to earlier. Thus, I find that only in the above circumstances the application for eviction on count of default can be allowed and/or rejected.

12. In the present matter as earlier stated, the payment of the rent due and payable from July, 1979 to December, 1979 has not been paid by the petitioner. The petitioner states that he has paid the said rent but the receipts are not issued by the landlord. However, having found that the petitioner has failed to prove the payment as observed earlier, the only inference follows that the landlord has established the default. The other explanation that there was a practice of payment after 5 to 6 months cannot be accepted because the petitioner has not established the said practice. Two receipts which are referred to by the petitioner cannot establish a practice as there is no consistency of an act so as to term as practice. Apart from that this cannot be accepted because the case of a payment being made and that there was a practice to pay the rent after 5 to 6 months are inconsistent and self-contradictory. Moreover, as observed earlier that the provisions of the Hyderabad Act and Andhra Pradesh Act are pari materia same, the ratio of the Full Bench Judgment of the Andhra Pradesh High Court in the matter of P.N. Rao and another v. K. Radhakrishnamachryulu, reported in : AIR1978AP319 has application, wherein it is observed:-

'Under section 10(2)(i) the Controller shall make an order directing the tenant to put the landlord in possession of the building if the Controller is satisfied that the tenant had 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 or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. On a plain reading of this section it is clear that all that the Controller has to see is whether the rent due was not paid or tendered within 15 days after the expiry of the time fixed in the agreement. If there is no such agreement he has to see whether the rent was not paid before the last day of the month next following that for which the rent is payable. If that condition is satisfied the Controller has no option but to direct the tenant to put the landlord in possession of the building unless the matter is one which falls within the proviso. Under the proviso, if the tenant's default was not wilful, the Controller may 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 and on such payment or tender, the application shall be rejected. The moment the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no such agreement before the last day of the month next following that for which rent is payable there is a default and a right on the part of the landlord to have the tenant evicted arises subject only to the proviso. There is nothing in this section which enables the tenant to contend that the right is lost merely because he pays or tenders the rent due by him subsequently.'

Therefore, the ultimate analysis of the above fact coupled with the facts of the provisions and following the ratios referred to above is that the petitioner is a defaulter and that the petitioner has failed to prove that the default on his part in payment of rent and/or tendering the rent was not wilful.

13. In earlier part of the judgment the tenant's explanation that there was a practice of making payment of accumulated rent for 4 to 5 months has been considered and has been negatived. It further requires to be considered that such an explanation cannot be accepted and is not fit within the scheme of the provision pertaining to default as discussed above. The obligation to pay the rent and/or tender the rent is of tenant and, therefore, the tenant will not pay the rent for 2 to 3 months and will come forward for accumulated rent. In that eventuality, if the rent is not accepted, it will be a case of rent tendered and not accepted and if the landlord accepts the rent it leads to a practice of accepting the accumulated rent and thereby the landlord is put to an adverse position and on either count the landlord suffers. A net result of this is that the statutory provisions are negatived. Because in that eventuality Clause (i) of section 15(2) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, which has been considered thoroughly above will not come into play in any eventuality. It is further necessary to mention that once the Court accepts that there is a practice of paying accumulated rent, then in future that landlord will never be entitled to get the possession of the property even if the defaults as contemplated under Clause (i) of section 15(2) of the Act have been committed by the tenant. Because, whenever the landlord comes for possession on such a ground, the explanation will be such practice. Net result, therefore, is that the practice of payment of accumulated rent cannot be accepted by way of explanation or defence to infer that the default was not wilful default. If such practice is accepted for any defence covered under the proviso, the main provision is permanently defeated and, therefore, such a practice which defeats the provision permanently and makes the law negatory cannot be accepted as an explanation for inferring the tenant as not a wilful defaulter. If a man claims the benefit of the statutory provisions, then he is equally under an obligation to discharge his statutory duty initially. However, the plea of practice of a payment of accumulated rent to be paid by the tenant shows that basically the tenant fails to discharge his statutory duty as provided under Clause (i) of section 15(2) of the Act but claims the benefit of the proviso, which is against the settled principles of law.

14. The learned Counsel also relied upon and referred to : AIR1992SC184 D.C. Oswal v. V.K. Subbiah,. This case, as has been observed in : [1985]2SCR643 is under the Tamilnadu Act and as the provisions of Tamilnadu Act pertaining to default are different than the present Act and/or the Andhra Pradesh Act, it would not be appropriate to follow the said judgment. Therefore, finally I find that the finding recorded by the District Judge that the petitioner is a wilful defaulter and that he has failed to prove that he is not a wilful defaulter, is proper and 1 confirm the said finding.

15. So far as the other findings are concerned, they are concurrent findings. Both the courts below have observed that the respondent is running a partnership business in the name and style 'Bombay Machinery Stores' and that the respondent is having 25% share. It has been further found that the said partnership business is located in the premises of one Sardar Kundansingh and that he had issued a notice of eviction through Advocate. It is further observed that the respondent's liability is based on the said partnership business and that he is pulling well with the other partners. The story that the business belongs to the joint family as contended by the petitioner has been negatived by the courts below. Under these circumstances the findings have been recorded that the respondent bona fide requires the premises for the purposes of running his business. While recording these findings the share of the respondent in Vijaylaxmi Engineering and Agricultural Engineering Co. to the extent of 20% and 16% have been also considered by the courts below. It has been also considered that except the present premises, the respondent is not possessed of any premises wherein he can carry on this non-residential activity. The other premises which are in possession of the respondent/landlord are the residential premises away from the market place. The learned Counsel appearing for the petitioner submitted, however, that since the day of filing of the eviction proceedings, nothing wrong has happened to the partnership firm of the respondent and, therefore, it is a simpliciter apprehension of the respondent and, therefore, his requirement cannot be said to be bona fide. I am not in agreement with the said submission. I find that the finding recorded by both the authorities below on the point of bona fide requirement of the landlord of the said premises is proper one.

16. So far as the alternative accommodation is available with the tenant is concerned, it is evident from the findings recorded by both the authorities below that initially the petitioner was running a liquor shop in the suit premises in partnership with his son Karsi. Thereafter in 1986 Karsi started another wine shop after retiring from this firm of the petitioner, namely, Nanded Wine Mart. It is further revealed that in place of the son Karsi, the petitioner introduced son Beju. It is to be noted that son Karsi is residing in Deelipsingh Colony and the petitioner is residing with him. Even the petitioner tried to contend that he is residing with Beju, Voters list, etc. produced on record show that the petitioner and his sons are residing in the same house. The story of the partition as claimed by the petitioner has been negatived by the Rent Controller, because the document of the partition was not registered one. It is further noticed that and admitted by the petitioner that he is running the wholesale dealership of the liquor in the name and style 'Nanded Wine Traders' in Wajegaon in partnership with his son Beju and one Rajkumar Mukkarwar. Thus, it will be revealed that the petitioner and his son Beju are carrying out the business in the suit premises in the name and style Nanded Wine Mart. His son Karsi is running Natraj Wine Mart and that the petitioner and his son Beju are carrying out a wholesale business of wine in the name of Nanded Wine Traders and all these business are of the joint family of the petitioner. Even though the partnership documents have been prepared, the partners are the members of the family as analyzed by the trial courts and, therefore, both the courts have rightly observed that there is alternative accommodation available with the petitioner and, therefore, have passed the order of eviction.

17. In the result, there is no substance in the revision application. The Revision Application is hereby dismissed. However, the petitioners are hereby granted six months time to vacate the premises, failing which the respondent to proceed for the execution of the orders confirmed. Cost in the cause.

18. Revision application dismissed.