B. Jagannatha Naidu and ors. Vs. the State of Andhra Pradesh - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.ordera.d.v. reddi, j.1. these two petitions raise a common point as to whether after the serving of the sentences in default of payment of fine imposed for an offence an order of attachment of property can also be passed under section 386, cr, p. c. without giving reasons.2. the accused in s. t, c. no. 9 of 1969 and those in s. t. c. no. 10 of 69 on the file of the munsiff-magistrate. huzurabad had been convicted of the offence under section 188, i. p. c. and sentenced to pay a fine of rs. 25/- or in default to undergo simple imprisonment for two weeks. all the accused except accused 35 in s. t. c. 10 of 1970 had undergone in default sentences and yet the court issued warrants of attachment under section 386(1)(a), cr. p. c. for recovery of the fine amount due from each of the accused. on revision the learned sessions judge karimnagar has made the references under section 438 cr. p. c. for setting aside the order of the magistrate issuing attachment warrants on the ground that he had not given special reasons for issuing the same as required under the proviso to section 386(1) cr. p. c.3. proviso to section 386(1)(a) reads as follows:provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default no court shall issue warrant unless for special reasons to be recorded in writing it considers it necessary to do so.before the proviso was introduced there was no restriction on the court from issuing the warrants for recovery of fine amounts in spite of the accused under-going in default sentences. even after the introduction of the proviso it does not mean that the undergoing of the default sentence operates as a discharge of satisfaction and the fine levied cannot be recovered. the recovery is discretionary and not mandatory as under section 547. cr. p. c. but there must be special reasons for the recovery of the same. the special reasons to be given will depend on the circumstances of each case, it is therefore necessary that if the court thought that in spite of having undergone the default sentences the recovery of fine was also necessary, it should give special reasons.in the present case no special reasons have been given. as the offence under section 183 i. p, c. is for defying the prohibitory orders issued under section 144 i. p. c. there can be no special reasons for the recovery of the fine in the present case. i, therefore accept the references and set aside the orders of the magistrate issuing warrants for attachment of the property to recover the fine amounts under section 386(1)(a), cr. p. c. in the result the references are accepted, except in the case of the accused 35 in s. t. c. no. 10 of 1969 and sannaiah. accused no. 80 in s. t. c. no. 9 of 69 who has not undergone the default, sentence, the fines, if collected will be refunded to the accused.

Judgment:
ORDER

A.D.V. Reddi, J.

1. These two petitions raise a common point as to whether after the serving of the sentences in default of payment of fine imposed for an offence an order of attachment of property can also be passed under Section 386, Cr, P. C. without giving reasons.

2. The accused in S. T, C. No. 9 of 1969 and those in S. T. C. No. 10 of 69 on the file of the Munsiff-Magistrate. Huzurabad had been convicted of the offence under Section 188, I. P. C. and sentenced to Pay a fine of Rs. 25/- or in default to undergo simple imprisonment for two weeks. All the accused except accused 35 in S. T. C. 10 of 1970 had undergone in default sentences and yet the court issued warrants of attachment under Section 386(1)(a), Cr. P. C. for recovery of the fine amount due From each of the accused. On revision the learned Sessions Judge Karimnagar has made the references under Section 438 Cr. P. C. for setting aside the order of the Magistrate issuing attachment warrants on the ground that he had not given special reasons for issuing the same as required under the proviso to Section 386(1) Cr. P. C.

3. Proviso to section 386(1)(a) reads as follows:

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default no court shall issue warrant unless for special reasons to be recorded in writing it considers it necessary to do so.

Before the proviso was introduced there was no restriction on the court from issuing the warrants for recovery of fine amounts in spite of the accused under-going in default sentences. Even after the introduction of the proviso it does not mean that the undergoing of the default sentence operates as a discharge of satisfaction and the fine levied cannot be recovered. The recovery is discretionary and not mandatory as under section 547. Cr. P. C. but there must be special reasons for the recovery of the same. The special reasons to be given will depend on the circumstances of each case, It is therefore necessary that if the court thought that in spite of having undergone the default sentences the recovery of fine was also necessary, it should give special reasons.

In the present case no special reasons have been given. As the offence under Section 183 I. P, C. is for defying the prohibitory orders issued under Section 144 I. P. C. there can be no special reasons for the recovery of the fine in the present case. I, therefore accept the references and set aside the orders of the Magistrate issuing warrants for attachment of the property to recover the fine amounts under Section 386(1)(a), Cr. P. C. In the result the references are accepted, Except in the case of the accused 35 in S. T. C. No. 10 of 1969 and Sannaiah. accused No. 80 in S. T. C. No. 9 of 69 who has not undergone the default, sentence, the fines, if collected will be refunded to the accused.