NavIn Chandra Vs. Smt. Prema Bai Pitti - 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. - but in the instant case the delivery ought to have been made on 27-6-1989. as the respondent-landlady failed to redeliver possession after completion of reconstruction, he gave a notice on 3-7-1989 requesting for delivery of possession.orderranga reddy, j.1. this revision is directed against the orders of the first additional rent controller, hyderabad in e.p. no. 44/89 in r.c. no. 1041/1988.2. the facts giving rise to the filing of this revision can briefly be stated as follows: the petitioner was the tenant of the respondent in respect of premises situated at hyderabad. the respondent-land-lady filed r.c. no. 1041/88 for eviction of the petitioner on the ground that she required the premises for demolition and re-construction. in these proceedings the parties entered into a compromise and filed a compromise memo on 2842-1988. as per that compromise, the petitioner-tenant shall deliver possession of the premises to the land-lady on 28-12-1988 and the land-lady agreed to complete construction and redeliver possession of the reconstructed premises within six months from 28-12-1988 to the tenant. the rent controller accordingly allowed the petition. the respondents took possession of the premises, completed re-construction of the same but did not redeliver possession of the premises to the petitioner after its completion. so the petitioner gave a notice dated 3-7-1989 to the respondentlandlady and requested her to put him in possession of the premises within seven days. the respondent received the said notice and sent a reply dated 10-7-1987 contending that the relief asked for is barred by time and that therefore,the petitioner is not competent to ask for redelivery of possession. thereafter the petitioner-tenant filed e.p. no. 44/89 on 7-8-1989. the first addl. rent controller, hyderabad dismissed the same by an order dated 7th october, 1989 holding that the petition is barred by time. aggrieved by that order of the rent controller the petitioner-tenant has filed this revision.3. the rent controller relying on the decision reported in 1987(2) a.l.t. (nrc) at page 15 held that the petition is barred by time. in that case the application for redelivery was made early ten years after the period specified for redelivery. but in the instant case the delivery ought to have been made on 27-6-1989. as the respondent-landlady failed to redeliver possession after completion of reconstruction, he gave a notice on 3-7-1989 requesting for delivery of possession. then the land-lady sent a reply dated 10-7-1989 stating that it is barred by time. immediately after the receipt of the said reply the tenant has filed e.p. no. 44/89 on 7-8-1989. so, under the circumstances it would be quite unreasonable to apply the above decision to the facts of this case. execution can be levied only when the order is disobeyed and the question of disobedience does not arise till the expiry of time given by the court for delivery of possession.4. so, under the circumstances, the petitioner-tenant could not have filed execution application for delivery unless the landlady had refused to do so. in a decision of our high court reported in 1987(1) alt page474 the landlord after completion of construction has not made an offer for delivery of possession. so in the absence of limitation it cannot be said that the petition is barred by time. i, therefore, set aside the order of the rent controller dated 17th april, 1989 made in e.p. no. 44/89 and direct him to restore e.p. no. 44/89 and proceed further. the c.r.p. is accordingly allowed. no costs.

Judgment:
ORDER

Ranga Reddy, J.

1. This Revision is directed against the orders of the First Additional Rent Controller, Hyderabad in E.P. No. 44/89 in R.C. No. 1041/1988.

2. The facts giving rise to the filing of this revision can briefly be stated as follows: The Petitioner was the tenant of the Respondent in respect of premises situated at Hyderabad. The Respondent-land-lady filed R.C. No. 1041/88 for eviction of the petitioner on the ground that she required the premises for demolition and re-construction. In these proceedings the parties entered into a compromise and filed a compromise Memo on 2842-1988. As per that compromise, the Petitioner-tenant shall deliver possession of the premises to the land-lady on 28-12-1988 and the land-lady agreed to complete construction and redeliver possession of the reconstructed premises within six months from 28-12-1988 to the Tenant. The Rent Controller accordingly allowed the Petition. The Respondents took possession of the premises, completed re-construction of the same but did not redeliver possession of the premises to the Petitioner after its completion. So the petitioner gave a notice dated 3-7-1989 to the Respondentlandlady and requested her to put him in possession of the premises within seven days. The Respondent received the said notice and sent a reply dated 10-7-1987 contending that the relief asked for is barred by time and that therefore,the petitioner is not competent to ask for redelivery of possession. Thereafter the Petitioner-Tenant filed E.P. No. 44/89 on 7-8-1989. The first Addl. Rent Controller, Hyderabad dismissed the same by an order dated 7th October, 1989 holding that the petition is barred by time. Aggrieved by that order of the Rent Controller the Petitioner-Tenant has filed this revision.

3. The Rent Controller relying on the decision reported in 1987(2) A.L.T. (NRC) at page 15 held that the petition is barred by time. In that case the application for redelivery was made early ten years after the period specified for redelivery. But in the instant case the delivery ought to have been made on 27-6-1989. As the Respondent-landlady failed to redeliver possession after completion of reconstruction, he gave a notice on 3-7-1989 requesting for delivery of possession. Then the land-lady sent a reply dated 10-7-1989 stating that it is barred by time. Immediately after the receipt of the said reply the Tenant has filed E.P. No. 44/89 on 7-8-1989. So, under the circumstances it would be quite unreasonable to apply the above decision to the facts of this case. Execution can be levied only when the order is disobeyed and the question of disobedience does not arise till the expiry of time given by the Court for delivery of possession.

4. So, under the circumstances, the petitioner-Tenant could not have filed execution application for delivery unless the landlady had refused to do so. In a decision of our High Court reported in 1987(1) ALT page474 the landlord after completion of Construction has not made an offer for delivery of possession. So in the absence of limitation it cannot be said that the petition is barred by time. I, therefore, set aside the order of the Rent Controller dated 17th April, 1989 made in E.P. No. 44/89 and direct him to restore E.P. No. 44/89 and proceed further. The C.R.P. is accordingly allowed. No costs.