N. Raj Kumar Vs. Sharada - Court Judgment

Excerpt:
tenancy - eviction - sections 11, 11 (4) and 22 of andhra pradesh buildings (lease, rent and eviction) control act, 1960 - respondent filed eviction petition on ground of bonafide requirement - bonafide requirement not proved - during pendency of suit tenant stopped payment of rent - eviction demanded on ground of non payment of rent - rent paid on order of rent controller - held, eviction order cannot be passed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - on the basis of the evidence adduced by both the parties, the rent controller held that the landlady as well as her husband did not depose that the landlady requires the building for starting a medical shop by the landlady and they merely deposed that they require the entire building for their personal occupation and further held that the bona fide requirement of the landlady is not proved by the landlady. accordingly the rent controller dismissed the eviction petition by his order dated 5.12.1997. 3. in the appeal, the appellate court held that in the absence of any evidence that the landlady wanted the suit mulgi for her business, her request for her occupation of the suit premises for her residence cannot be accepted and further held that the landlady failed to establish that she is in bona fide requirement of the suit premises for her residence. 11, 000=00 later for the rent payable by him for the period from january 1997 to august 1998. the appellate court held that there is a statutory duty fixed on the tenant to deposit the rent every month without fail and deposit of the rent for a period of 42 months together in one instance and later for 19 months in another lump sum is a clear violation of statutory obligation and such deposit shows that the tenant is irregular in payment of rents and he is a wilful defaulter within the meaning of section 10 of the rent control act. the supreme court held that this clearly shows that there was no default at all much less wilful default on the part of the tenant in paying the rent for the months from july, 1988 to december, 1988. the supreme court held that the eviction petition requires to be summarily rejected. it can, therefore, easily be said that the respondents waived this right available to them under the statute presumably because they themselves were satisfied on getting full payment of arrears of rent by encashing the bank draft dated 2nd february, 1989. consequently, even this contention cannot be of any assistance to the respondent'.6. there is a full bench judgment of a. accommodation control act, 1961. it was held that the landlord is the best judgment of his requirement for residential or business purpose and he has got complete freedom in the matter. this decision also does not help the landlady inasmuch as she failed to depose before the court that she requires the suit mulgi for her starting business in medicines. the foregoing discussion clearly shows that the order of the appellate court is liable to be set aside. the landlady failed to prove that she is entitled to evict the tenant on the ground of her requirement for her personal non-residential occupation as well as wilful default allegedly committed by the tenant during the pendency of the eviction proceedings.order1. this revision petition is filed under section 22 of a.p. buildings (lease, rent & eviction) control act, 1960 (hereinafter referred to as 'the act') against the order dated 14.9.1998 in r.a.no.1 of 1998 on the file of principal senior civil judge, rangareddy at saroornagar, setting aside the order dated 5.12.1997 of the rent controller-cum-principal district munsif, east and north, rangareddy, in r.c.no.28 of 1993 on his file.2. the tenant is the revision petitioner. the respondent landlady filed eviction petition against the tenant on only one ground.the suit premises is a non-residential premises wherein the tenant is doing medical business. the landlady sought for possession of the suit premises on the ground that she is in need of the mulgi for the purpose of opening a medical and general stores and also to put up her residence in the room attached to the said mulgi. the tenant contended that the requirement alleged by the landlady is not a bona fide requirement. on the basis of the evidence adduced by both the parties, the rent controller held that the landlady as well as her husband did not depose that the landlady requires the building for starting a medical shop by the landlady and they merely deposed that they require the entire building for their personal occupation and further held that the bona fide requirement of the landlady is not proved by the landlady. however, during the pendency of the eviction petition before the rent controller, it was contended on behalf of the landlady that during the pendency of the eviction proceedings, the tenant committed wilful default in payment of rents and on that ground the tenant is liable to be evicted.the tenancy court did not accept that contention holding that the landlady cannot seek the eviction of the respondent on the ground of wilful default when there is no pleading and when there is no amendment to the petition to include the ground of wilful default. accordingly the rent controller dismissed the eviction petition by his order dated 5.12.1997.3. in the appeal, the appellate court held that in the absence of any evidence that the landlady wanted the suit mulgi for her business, her request for her occupation of the suit premises for her residence cannot be accepted and further held that the landlady failed to establish that she is in bona fide requirement of the suit premises for her residence.4. during the pendency of the eviction proceedings before the rent controller, the tenant deposited in a lump sum the said rent payable by him from june 1993 to december 1996. he paid in lump sum the rent for a period of nearly three and half years. similarly he made a lump sum payment of rs.11, 000=00 later for the rent payable by him for the period from january 1997 to august 1998. the appellate court held that there is a statutory duty fixed on the tenant to deposit the rent every month without fail and deposit of the rent for a period of 42 months together in one instance and later for 19 months in another lump sum is a clear violation of statutory obligation and such deposit shows that the tenant is irregular in payment of rents and he is a wilful defaulter within the meaning of section 10 of the rent control act. accordingly the appellate court held that the landlady is entitled to seek the eviction of the tenant on the ground of wilful default during the pendency of the proceedings before the rent controller. he accordingly allowed the appeal directing eviction of the tenant on the ground of wilful default.5. regarding the ground of wilful default in payment of rent, the revision petitioner tenant relied upon a decision of the supreme court in k.a.ramesh v. susheela bai(1). in that case the eviction ________________________________________________________(1) : [1998]1scr892 of the tenant was sought for on the ground of wilful default. before the landlord commenced eviction proceedings, the tenant sent entire arrears of rent from july, 1988 to december, 1988, by a bank draft to the landlord. the landlord encashed the demand draft after he instituted the eviction proceedings. the supreme court observed that by sending demand draft, when there was no litigation between the parties, full payment of arrears was tendered and that was accepted and realized pending the eviction proceedings. the supreme court held that this clearly shows that there was no default at all much less wilful default on the part of the tenant in paying the rent for the months from july, 1988 to december, 1988. the supreme court held that the eviction petition requires to be summarily rejected. regarding the contention that even pending eviction proceedings there was default on the part of the tenants, as they had not paid the rent during the pendency of those proceedings, the supreme court held as follows:' that apart, even if there was any default pending such proceedings, it was open to the respondents to enforce the statutory right available to them under section 11(1) read with section 11(4) of the act for getting all further proceedings stopped before the rent controller and for asking immediate decree for possession, and/or in appeal of the appellant-tenants to request the appellate court to dismiss the appeal and put the respondent-landlords forthwith in possession on account of such default. nothing of this sort was done by the respondents. if they had tried to enforce this right, the appellants would have got an opportunity to show to the trial court or the appellate court, as the case may be, that there was sufficient cause for not passing such an order under section 11(4) of the act.the opportunity never became available to the appellants, as the respondents did not invoke this provision. it can, therefore, easily be said that the respondents waived this right available to them under the statute presumably because they themselves were satisfied on getting full payment of arrears of rent by encashing the bank draft dated 2nd february, 1989. consequently, even this contention cannot be of any assistance to the respondent'.6. there is a full bench judgment of a.p. high court in vinukonda venkata ramanavs. mootha venkateswara rao (2) wherein it was held that if any default is committed subsequent to the filing of the eviction petition in payment of rents, it can be made a ground for ordering eviction provided an application is filed under section 11 of the act to put the landlord in possession. in the present case, the landlady did not resort to the provisions contained in section 11 of the act. therefore, on the ground that default is committed in payment of rents during the pendency of the eviction petition, the tenant cannot be evicted.7. as against these two binding judgments, the learned advocate for the respondent relied upon two other judgments. one judgment is a judgment of a single judge of a.p. high court in ghouse mohiuddinvs. dr. l.bhasker reddy(3). this decision has _______________________________________________________ (2) 2001(6)ald 27 (3) 1995(2) ald 108 no application inasmuch as in that case a petition under section 11(4) of the act is filed and allowed by the courts. in the present case no petition under section 11(4) of the act is filed by the landlady regarding the default in payment of rents during the pendency of the eviction proceedings. another decision relied upon by the learnedadvocate for the respondent is a judgment of a.p. high court in adapa santharam v. sait nathmal manik (4). it was held by in this decision that mere filing of an application under section 8(5) of the act by the tenant without depositing the rent immediately and without complying the other requirements of section 8 is not sufficient to invoke the provisions in section 8(5) of the act. it was held that such application will not come to the aid of a tenant to show his bona fides in not paying the rent in time. this decision also does not apply to the facts on hand inasmuch as the landlady did not invoke the provisions of section 11(4) of the act during the pendency of the eviction proceedings either before the tenancy court or in the appellate court.8. regarding the ground of bona fide requirement, it is to be held_______________________________________________________(4) : air 1996 ap149 that the two courts below concurrently found that the requirement of the landlady for her personal occupation is not bona fide requirement. that finding was given based on the evidence adduced by the landlady herself. there is no error committed by the courts below in giving such a finding. in this regard the learned advocate for the respondent relied upon a judgment of the supreme court in raghavendra kumar v. firm prem machinary & co. (5). the above proceedings arose under the provisions of m.p. accommodation control act, 1961. it was held that the landlord is the best judgment of his requirement for residential or business purpose and he has got complete freedom in the matter. this decision also does not help the landlady inasmuch as she failed to depose before the court that she requires the suit mulgi for her starting business in medicines. she wanted the building during her evidence for her personal occupation and not for the purpose of starting a business which was the ground pleaded in her petition. the foregoing discussion clearly shows that the order of the appellate court is liable to be set aside.the landlady failed to prove that she is entitled to evict the tenant on the ground of her requirement for her personal non-residential occupation as well as wilful default allegedly committed by the tenant during the pendency of the eviction proceedings._________________________________________________________(5) 2000(1) scale 49 9. in the result, i allow the c.r.p., without costs. the order of the principal senior civil judge, rangareddy in r.a.no.1 of 1998 is set aside. the order of the rent controller-cum-principal district munsif, east and north, rangareddy in r.c.no.28 of 1993 is confirmed.

Judgment:
ORDER

1. This revision petition is filed under Section 22 of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (hereinafter referred to as 'the Act') against the order dated 14.9.1998 in R.A.No.1 of 1998 on the file of Principal Senior Civil Judge, Rangareddy at Saroornagar, setting aside the order dated 5.12.1997 of the Rent Controller-cum-Principal District Munsif, East and North, Rangareddy, in R.C.No.28 of 1993 on his file.

2. The tenant is the revision petitioner. The respondent landlady filed eviction petition against the tenant on only one ground.The suit premises is a non-residential premises wherein the tenant is doing medical business. The landlady sought for possession of the suit premises on the ground that she is in need of the mulgi for the purpose of opening a medical and general stores and also to put up her residence in the room attached to the said mulgi. The tenant contended that the requirement alleged by the landlady is not a bona fide requirement. On the basis of the evidence adduced by both the parties, the Rent Controller held that the landlady as well as her husband did not depose that the landlady requires the building for starting a medical shop by the landlady and they merely deposed that they require the entire building for their personal occupation and further held that the bona fide requirement of the landlady is not proved by the landlady. However, during the pendency of the eviction petition before the Rent Controller, it was contended on behalf of the landlady that during the pendency of the eviction proceedings, the tenant committed wilful default in payment of rents and on that ground the tenant is liable to be evicted.The tenancy court did not accept that contention holding that the landlady cannot seek the eviction of the respondent on the ground of wilful default when there is no pleading and when there is no amendment to the petition to include the ground of wilful default. Accordingly the Rent Controller dismissed the eviction petition by his order dated 5.12.1997.

3. In the appeal, the appellate court held that in the absence of any evidence that the landlady wanted the suit mulgi for her business, her request for her occupation of the suit premises for her residence cannot be accepted and further held that the landlady failed to establish that she is in bona fide requirement of the suit premises for her residence.

4. During the pendency of the eviction proceedings before the Rent Controller, the tenant deposited in a lump sum the said rent payable by him from June 1993 to December 1996. He paid in lump sum the rent for a period of nearly three and half years. Similarly he made a lump sum payment of Rs.11, 000=00 later for the rent payable by him for the period from January 1997 to August 1998. The appellate court held that there is a statutory duty fixed on the tenant to deposit the rent every month without fail and deposit of the rent for a period of 42 months together in one instance and later for 19 months in another lump sum is a clear violation of statutory obligation and such deposit shows that the tenant is irregular in payment of rents and he is a wilful defaulter within the meaning of Section 10 of the Rent Control Act. Accordingly the appellate court held that the landlady is entitled to seek the eviction of the tenant on the ground of wilful default during the pendency of the proceedings before the Rent Controller. He accordingly allowed the appeal directing eviction of the tenant on the ground of wilful default.

5. Regarding the ground of wilful default in payment of rent, the revision petitioner tenant relied upon a decision of the Supreme Court in K.A.RAMESH v. SUSHEELA BAI(1). In that case the eviction

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(1) : [1998]1SCR892 of the tenant was sought for on the ground of wilful default. Before the landlord commenced eviction proceedings, the tenant sent entire arrears of rent from July, 1988 to December, 1988, by a bank draft to the landlord. The landlord encashed the demand draft after he instituted the eviction proceedings. The Supreme Court observed that by sending demand draft, when there was no litigation between the parties, full payment of arrears was tendered and that was accepted and realized pending the eviction proceedings. The Supreme Court held that this clearly shows that there was no default at all much less wilful default on the part of the tenant in paying the rent for the months from July, 1988 to December, 1988. The Supreme Court held that the eviction petition requires to be summarily rejected. Regarding the contention that even pending eviction proceedings there was default on the part of the tenants, as they had not paid the rent during the pendency of those proceedings, the Supreme Court held as follows:

' That apart, even if there was any default pending such proceedings, it was open to the respondents to enforce the statutory right available to them under Section 11(1) read with Section 11(4) of the Act for getting all further proceedings stopped before the Rent Controller and for asking immediate decree for possession, and/or in appeal of the appellant-tenants to request the appellate court to dismiss the appeal and put the respondent-landlords forthwith in possession on account of such default. Nothing of this sort was done by the respondents. If they had tried to enforce this right, the appellants would have got an opportunity to show to the Trial Court or the Appellate Court, as the case may be, that there was sufficient cause for not passing such an order under Section 11(4) of the Act.The opportunity never became available to the appellants, as the respondents did not invoke this provision. It can, therefore, easily be said that the respondents waived this right available to them under the statute presumably because they themselves were satisfied on getting full payment of arrears of rent by encashing the bank draft dated 2nd February, 1989. Consequently, even this contention cannot be of any assistance to the respondent'.

6. There is a Full Bench judgment of A.P. High Court in VINUKONDA VENKATA RAMANAVs. MOOTHA VENKATESWARA RAO (2) wherein it was held that if any default is committed subsequent to the filing of the eviction petition in payment of rents, it can be made a ground for ordering eviction provided an application is filed under Section 11 of the Act to put the landlord in possession. In the present case, the landlady did not resort to the provisions contained in Section 11 of the Act. Therefore, on the ground that default is committed in payment of rents during the pendency of the eviction petition, the tenant cannot be evicted.

7. As against these two binding judgments, the learned Advocate for the respondent relied upon two other judgments. One judgment is a judgment of a single Judge of A.P. High Court in GHOUSE MOHIUDDINVs. Dr. L.BHASKER REDDY

(3). This decision has

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(2) 2001(6)ALD 27

(3) 1995(2) ALD 108

no application inasmuch as in that case a petition under Section 11(4) of the Act is filed and allowed by the courts. In the present case no petition under Section 11(4) of the Act is filed by the landlady regarding the default in payment of rents during the pendency of the eviction proceedings. Another decision relied upon by the learnedAdvocate for the respondent is a judgment of A.P. High Court in ADAPA SANTHARAM v. SAIT NATHMAL MANIK (4). It was held by in this decision that mere filing of an application under Section 8(5) of the Act by the tenant without depositing the rent immediately and without complying the other requirements of Section 8 is not sufficient to invoke the provisions in Section 8(5) of the Act. It was held that such application will not come to the aid of a tenant to show his bona fides in not paying the rent in time. This decision also does not apply to the facts on hand inasmuch as the landlady did not invoke the provisions of Section 11(4) of the Act during the pendency of the eviction proceedings either before the tenancy court or in the appellate court.

8. Regarding the ground of bona fide requirement, it is to be held

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(4) : AIR 1996 AP149

that the two courts below concurrently found that the requirement of the landlady for her personal occupation is not bona fide requirement. That finding was given based on the evidence adduced by the landlady herself. There is no error committed by the courts below in giving such a finding. In this regard the learned advocate for the respondent relied upon a judgment of the Supreme Court in RAGHAVENDRA KUMAR v. FIRM PREM MACHINARY & CO. (5). The above proceedings arose under the provisions of M.P. Accommodation Control Act, 1961. It was held that the landlord is the best judgment of his requirement for residential or business purpose and he has got complete freedom in the matter. This decision also does not help the landlady inasmuch as she failed to depose before the court that she requires the suit mulgi for her starting business in medicines. She wanted the building during her evidence for her personal occupation and not for the purpose of starting a business which was the ground pleaded in her petition. The foregoing discussion clearly shows that the order of the appellate court is liable to be set aside.The landlady failed to prove that she is entitled to evict the tenant on the ground of her requirement for her personal non-residential occupation as well as wilful default allegedly committed by the tenant during the pendency of the eviction proceedings.

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(5) 2000(1) SCALE 49

9. In the result, I allow the C.R.P., without costs. The order of the Principal Senior Civil Judge, Rangareddy in R.A.No.1 of 1998 is set aside. The order of the Rent Controller-cum-Principal District Munsif, East and North, Rangareddy in R.C.No.28 of 1993 is confirmed.