Sikile Moses Vs. Koturi Seeta Ram Das - 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. - this court granted conditional stay on 19-4-1993. the petitioner failed to deposit half the decretal amount as stipulated in the interim order of this court.orderp. venkatarama reddi, j.1. this civil revision petition is filed against the order in e.p. directing arrest of the judgment-debtor.2. in o.s.no. 143 of 1982 on the file of the subordinate judge, narsapur, a money decree was passed against the petitioner herein. against that decree, a.s.no. 956 of 1993 was filed by the petitioner. this court granted conditional stay on 19-4-1993. the petitioner failed to deposit half the decretal amount as stipulated in the interim order of this court. thus the stay order became inoperative and the decree is liable to be executed. it appears that the petitioner preferred a special leave petition in the supreme court against the order passed in the c.m.p. it is not known whether the special leave petition has been disposed of or not.3. while so, the respondent-decree holder filed e.p.no. 46 of 1992 on 23-11-1992 requesting the court to issue notice under order xxi rule 11 of the code of civil procedure and thereafter to issue arrest warrant. notice was ordered by the court. the petitioner filed a counter stating that a special leave petition was filed in the supreme court against the order of the high court and that he was prepared to give adequate personal or third party security for the decretal amount till the disposal of the matter in the supreme court. he also stated that he was prepared to deposit half of the decretal amount in case the supreme court refuses to grant stay. on 16-9-1993, the learned subordinate judge passed a cryptic order which reads as follows:'arrest the judgment debtor on payment of process by 9-11-1993.'4. the learned subordinate judge has not given any reasons for directing arrest of the judgment debtor nor did he conduct an equity in terms of order xxi rule 40. having regard to the fact that the judgment-debtor appeared before the court in obedience to the notice issued under rule 37, it was incumbent on the part of the executing court to hear the decree-holder and after recording evidence, if any, adduced by him, the court should have given the judgment-debtor an opportunity of showing cause as to why he should not be committed to civil prison. under section 51 of the code of civil procedure, the court shall have to record reasons for committing the judgment-debtor to prison. the court has to record satisfaction as to the applicability of clause (a), (b) or (c) of section 51. of course, in this case, the relevant clause applicable is clause (b). though prima facie, there is no dispute as to the means of the petitioner, the court has to record a finding that the judgment-debtor has refused or neglected to pay the decretal amount. of course, the executing court, pending the conclusion of the enquiry under sub-rule (1) of rule 40 may order the judgment debtor to be detained in the custody of the officer of the court or release him on his furnishing security to the satisfaction of the court for his appearance when required. evidently, this power has not been exercised by the court nor order of arrest was directed under sub-rule (2) of order xxi rule 37, because the said sub-rule has no application here. above all, no reasons whatsoever have been recorded for directing the arrest of the judgment-debtor. it is not mentioned under what provision the arrest is directed. no reference was made to the stand taken by the judgment-debtor in the counter. the order of arrest cannot, therefore, stand a moment's scrutiny. before passing orders of drastic nature having effect on the personal liberty of the party, the lower court should have atleast passed a brief reasoned order. for all these reasons, i have no hesitation in setting aside the impugned order of arrest.5. the learned counsel for the respondent has contended that the stay of the order directing arrest would impede the recovery of the decretal amount which, under the terms of the order passed by this court, ought to have been paid by the petitioner. it is submitted that by obtaining stay of arrest, the petitioner is able to circumvent the order of this court. the learned counsel for the respondent also commented on the conduct of the judgment-debtor in evading to receive notices and in moving an application for stay in the appeal after the paper advertisement was issued.6. it may be that the petitioner is evading to pay the amount or he may be guilty of reprehensible conduct. but it is for the executing court to take all these aspects into account before taking a decision to arrest and commit the petitioner to civil prison. the actual decision taken by the court may or may not be correct but i am only finding fault with the mode and manner of arriving at the decision. the argument that any interference in the civil revision petition would amount to circumvention of the interim orders by this court, pending the appeal, cannot be accepted. if the interim order is not complied with and the stay ceases to be operative, the decree-holder will be at liberty to execute the decree but it should be in accordance with and in a manner known to law.7. in the result, i set aside the impugned order dated 16-9-1993 in e.p.no. 46 of 1992 and direct the subordinate judge, narsapur, to proceed with and decide the matter afresh in the light of the observations made in this judgment. he shall dispose of the e.p. expeditiously. the civil revision petition is, accordingly, allowed. no order as to costs.

Judgment:
ORDER

P. Venkatarama Reddi, J.

1. This Civil Revision Petition is filed against the order in E.P. directing arrest of the judgment-debtor.

2. In O.S.No. 143 of 1982 on the file of the Subordinate Judge, Narsapur, a money decree was passed against the petitioner herein. Against that decree, A.S.No. 956 of 1993 was filed by the petitioner. This Court granted conditional stay on 19-4-1993. The petitioner failed to deposit half the decretal amount as stipulated in the interim order of this Court. Thus the stay order became inoperative and the decree is liable to be executed. It appears that the petitioner preferred a Special Leave Petition in the Supreme Court against the order passed in the C.M.P. It is not known whether the Special Leave Petition has been disposed of or not.

3. While so, the respondent-decree holder filed E.P.No. 46 of 1992 on 23-11-1992 requesting the Court to issue notice under Order XXI Rule 11 of the Code of Civil Procedure and thereafter to issue arrest warrant. Notice was ordered by the Court. The petitioner filed a counter stating that a Special Leave Petition was filed in the Supreme Court against the order of the High Court and that he was prepared to give adequate personal or third party security for the decretal amount till the disposal of the matter in the Supreme Court. He also stated that he was prepared to deposit half of the decretal amount in case the Supreme Court refuses to grant stay. On 16-9-1993, the learned Subordinate Judge passed a cryptic order which reads as follows:

'Arrest the judgment debtor on payment of process by 9-11-1993.'

4. The learned Subordinate Judge has not given any reasons for directing arrest of the judgment debtor nor did he conduct an equity in terms of Order XXI Rule 40. Having regard to the fact that the judgment-debtor appeared before the Court in obedience to the notice issued under Rule 37, it was incumbent on the part of the executing Court to hear the decree-holder and after recording evidence, if any, adduced by him, the Court should have given the Judgment-debtor an opportunity of showing cause as to why he should not be committed to civil prison. Under Section 51 of the Code of Civil Procedure, the Court shall have to record reasons for committing the judgment-debtor to prison. The Court has to record satisfaction as to the applicability of Clause (a), (b) or (c) of Section 51. Of course, in this case, the relevant clause applicable is Clause (b). Though prima facie, there is no dispute as to the means of the petitioner, the Court has to record a finding that the judgment-debtor has refused or neglected to pay the decretal amount. Of course, the executing Court, pending the conclusion of the enquiry under Sub-rule (1) of Rule 40 may order the judgment debtor to be detained in the custody of the officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. Evidently, this power has not been exercised by the Court nor order of arrest was directed under Sub-rule (2) of Order XXI Rule 37, because the said sub-rule has no application here. Above all, no reasons whatsoever have been recorded for directing the arrest of the judgment-debtor. It is not mentioned under what provision the arrest is directed. No reference was made to the stand taken by the Judgment-debtor in the counter. The order of arrest cannot, therefore, stand a moment's scrutiny. Before passing orders of drastic nature having effect on the personal liberty of the party, the lower Court should have atleast passed a brief reasoned order. For all these reasons, I have no hesitation in setting aside the impugned order of arrest.

5. The learned Counsel for the respondent has contended that the stay of the order directing arrest would impede the recovery of the decretal amount which, under the terms of the order passed by this Court, ought to have been paid by the petitioner. It is submitted that by obtaining stay of arrest, the petitioner is able to circumvent the order of this Court. The learned Counsel for the respondent also commented on the conduct of the judgment-debtor in evading to receive notices and in moving an application for stay in the appeal after the paper advertisement was issued.

6. It may be that the petitioner is evading to pay the amount or he may be guilty of reprehensible conduct. But it is for the executing Court to take all these aspects into account before taking a decision to arrest and commit the petitioner to civil prison. The actual decision taken by the Court may or may not be correct but I am only finding fault with the mode and manner of arriving at the decision. The argument that any interference in the civil revision petition would amount to circumvention of the interim orders by this Court, pending the appeal, cannot be accepted. If the interim order is not complied with and the stay ceases to be operative, the decree-holder will be at liberty to execute the decree but it should be in accordance with and in a manner known to law.

7. In the result, I set aside the impugned order dated 16-9-1993 in E.P.No. 46 of 1992 and direct the Subordinate Judge, Narsapur, to proceed with and decide the matter afresh in the light of the observations made in this judgment. He shall dispose of the E.P. expeditiously. The Civil Revision Petition is, accordingly, allowed. No order as to costs.