Puppala Apparao Vs. Yelisetti Vasantha Kumari - Court Judgment

Excerpt:
tenancy - willful default - section 13 of a.p. (a.a) of tenancy act - whether reception of rent payed beyond limitation period constitutes waiver of right of eviction by landlady - payment of rent after limitation period does not absolves willful default committed by tenant - held, tenant liable to vacate property taking crops raised by him. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board.....orderp.s. narayana, j.1. puppala appa rao, the unsuccessful tenant before both the tribunals below is the revision petitioner. the respondent herein, yelisetti vasantha kumari, had filed atc no. 19/96 on the file of special officer-cum-principal junior civil judge, kakinada for eviction of the tenant on the ground that the tenant had committed default in payment of maktha for 1984-85 and 1985-86 and the learned special officer, on the respective pleadings of the parties, had recorded the evidence of pw1, pw2, rw-1 and rw-2 and marked exs.a-1 to a10 and exs.b-1 to b4 and ultimately had arrived at a conclusion that the landlady is entitled to the relief prayed for and ordered eviction by order dated 22-6-1988. aggrieved by the same, the tenant filed a.t.a. no. 27/ 98 and the landlady filed.....

Judgment:
ORDER

P.S. Narayana, J.

1. Puppala Appa Rao, the unsuccessful tenant before both the Tribunals below is the revision petitioner. The respondent herein, Yelisetti Vasantha Kumari, had filed ATC No. 19/96 on the file of Special Officer-cum-Principal Junior Civil Judge, Kakinada for eviction of the tenant on the ground that the tenant had committed default in payment of maktha for 1984-85 and 1985-86 and the learned Special Officer, on the respective pleadings of the parties, had recorded the evidence of PW1, PW2, RW-1 and RW-2 and marked Exs.A-1 to A10 and Exs.B-1 to B4 and ultimately had arrived at a conclusion that the landlady is entitled to the relief prayed for and ordered eviction by order dated 22-6-1988. Aggrieved by the same, the tenant filed A.T.A. No. 27/ 98 and the landlady filed A.T.A. No. 29/98 and the Appellate Tribunal-Hi Additional District Judge, Kakinada by order dated 4-8-2003 had dismissed both the Appeals. The tenant, aggrieved by the order made in A.T.A. No. 27/98 had preferred the present civil revision petition. The landlady who had preferred ATA No. 29/98 relating to the dispute of quantum of maktha had not preferred any revision and the said order became final.

2. Sri E.V.V.S. Ravi Kumar, the learned Counsel representing the revision petitioner/tenant had submitted that the petitioner/tenant never committed any default in payment of maktha at any point of time. The learned Counsel also submitted that the stand taken by the landlady relating to the maktha had been disbelieved and the learned Counsel also would maintain that when the demand draft was delivered the landlady initially refused to receive, but subsequently had encashed the same and in view of the fact that there were no arrears at all as on the date of filing of the ATC, the ATC itself is not maintainable and the learned Counsel also contended that it should be taken that the ground of default also had been waived by the landlady. The Counsel placed reliance on certain decisions in this regard.

3. Per contra, Sri Ugle, the learned Counsel representing the landlady in all fairness had submitted that the fact remains that the maktha was decided as 72 kata bags per year and though the landlady had preferred ATA as against the said finding, since the appellate authority had dismissed the same, the said finding became final and hence the learned Counsel submitted that this can be taken as 72 kata bags per year only. The learned Counsel had further maintained that there is no question of applying any doctrine of waiver in the present case since there was no plea at all. The Counsel also had drawn the attention of this Court to the conduct of the tenant and had explained the prior litigations in OSNo. 313/86 and OS No. 630/92. The Counsel also contended that PW-1 had clearly stated that she had encashed the demand draft without prejudice to her contentions and hence in the light of the clear concurrent findings recorded by both the Tribunals below, this Court should be reluctant to interfere with such findings under Article 227. The Counsel also placed strong reliance on the decisions made by this Court in CRP No. 2647/2003 and had also placed reliance on Deity Shri Kesava Janardhana and Venugopala Swamy Varlu v. A. Putta Rao and Ors., 1996 (2) ALD 1211 = 1996 (2) APLJ 283 (DB).

4. Heard both the Counsel.

5. The landlady, as petitioner, had pleaded in the ATC as hereunder:

6. It was pleaded that the petitioner is the owner and the respondent is the cultivating tenant of petition schedule property in an extent of Acs.6-10 cents in S.No. 60/1 and S.No. 75/1 of Venkatakrishnarayapuram. The petition schedule land was leased out to the respondent on yearly maktha of 91 kata bags of paddy payable on or before 15th January of every succeeding year. The petitioner is liable to pay the tax due for the first crop and the respondent is liable to pay the tax due for the second crop. If there is any default in payment of maktha, then the petitioner is entitled to recover such maktha with interest at the rate of 12% per annum from the date of due upto the date of realization. The petitioner is also entitled to evict the respondent from the petition schedule land, if the respondent commits default in payment of maktha. It was pleaded that the respondent committed default in payment of maktha due for the years 1984-85 and 1985-86 and despite repeated demands, the respondent did not choose to pay the maktha. The respondent approached the petitioner on 18-3-1986 and wanted to pay an amount of Rs. 9,000/- by demand draft towards, part payment of maktha due for the year 1984-85 and requested time for payment of balance maktha, but the petitioner refused to receive the demand draft. While so, on 24-3-1986 the petitioner received legal notice along with draft dated 17-3-1986 for Rs. 9,000/-. In the said notice, it was mentioned that the maktha to the petition schedule land is only 72 bags. The petitioner filed IA.No. 735/87 for appointment of a Receiver to take possession of schedule land but the same was dismissed by the Tribunal. The petitioner preferred an appeal in ATA No. 216/87 against the order passed in IA.No. 735/87. The Appellate Tribunal passed orders on 17-7-1989 allowing the appeal and setting aside the order of the Tribunal and directed the respondent to deposit the value of 19 bags of paddy on or before 31st March of agricultural year apart from paying the value of 72 kata bags of paddy to the petitioner. The respondent filed WP No. 14392/89 challenging the said orders passed in ATA No. 216/87 and that this Court dismissed the said writ petition by its order dated 5-7-1996 and confirmed the orders of the Appellate Tribunal passed in ATA No. 216/87.

7. The revision petitioner herein as tenant/respondent denied the allegations and had pleaded in the counter as hereunder:

8. It was pleaded that the respondent went to Eluru where the petitioner is staying and offered the entire value of maktha for the year 1985-86 by bank draft, but the petitioner refused to receive the same. When the respondent sent a demand draft through registered post the petitioner received the draft and sent a reply through her Advocate with false facts and allegations. Then the respondent sent a rejoinder on 17-4-1986 to the petitioner's Advocate. It was pleaded that the total extent of petition schedule property is Acs.5-80 cents and not Acs.6-10 cents. The remaining Ac.0-30 cents was merged in the canal long ago. It was further pleaded that the father of the petitioner late Ungarala Hanumantharao leased out the schedule land to the respondent on an yearly maktha of 60 bags. It was further pleaded that the respondent paid maktha regularly to late Ungarala Hanumantharao during his life time, but Hanumantharao never issued any receipt to the respondent for payment of maktha. There was no such custom and usage of issuing receipt for payment of maktha from the beginning of tenancy since more than 30 years. It was pleaded that after the death of Hanumantharao, the petitioner had been receiving maktha regularly from the respondent. It was specifically pleaded that the respondent never committed default in payment of maktha during the years 1984-85 and 1985-86. It was also further pleaded that recently the respondent raised the maktha also from 60 bags to 72 bags. The petitioner is not entitled to ask for eviction of the respondent from the petition schedule land. The alleged arrears of maktha is false and incorrect. It was pleaded that the petitioner made an attempt to sell the petition schedule property to deprive the legal rights of the respondent.

9. Before the Special Officer, on behalf of the landlady, PW-1 and PW2 were examined and Exs.A-1 to A10 were marked and on behalf of the tenant, RW-1 and RW2 were examined and Exs.B-1 to B-4 were marked. No doubt, a finding was given that maktha is only 72 kata bags and not 91 kata bags and the said finding to the effect that the maktha is 72 kata bags only became final inasmuch as the landlady had not preferred any revision as against the said finding recorded by both the Tribunals below. The Appellate Tribunal while making the Common Order in ATA Nos. 27 and 29 of 1998 filed by the respective parties, framed the following Points for consideration:

1. Whether the respondent committed default in payment of maktha for the years 1984-85 and 1985-86?

2. Whether the petitioner is entitled for maktha at the rate of 91 kata bags per year?

3. Whether there are any grounds to set aside the order and decree of the Lower Tribunal ?

4. To what relief?

The oral and documentary evidence, in fact, had been discussed in detail and ultimately the appellate Tribunal had arrived at the conclusion that the maktha is only 72 kata batgs per year and also arrived at the conclusion that the tenant committed default for the years 1984-85 and 1985-86 and had confirmed the order of eviction.

10. The oral and documentary evidence was in fact discussed in detail. PW1 is the landlady and PW2 had supported the evidence of PW1. Ex.A1 is the Photostat copy of the demand draft for Rs. 9,000/-; Ex.A2 is the office copy of the reply; Exs.A-3 to A-7 are the contradictions of the tenant in his evidence as PW1 in OS No. 313/86; Ex.A-8 is the rejoinder of the notice; Ex.A9 is the contradiction in OS No. 630/92, and Ex.A10 is the copy of judgment in OS.No. 313/86 filed by the landlady against the tenant for recovery of rent for 1984-85 and 1985-86. Likewise, RW1 - the tenant, and RW-2 were examined and Exs.B-1 to B-4 were marked. Ex.B-1 is a few lines in the certified copy of the deposition of PW1 in OS No. 713/95; Ex.B-2 is a few lines in the certified copy of deposition of RW-2 in OS No. 630/92; Ex.B-3 is a certified copy of the decree and judgment in OS No. 1/1962 on the file of n Additional District Munsif, Kakinada, and Ex.B-4 is a certified copy of the decree and judgment in OS No. 630/92 on the file of I Additional Junior Civil Judge, Kakinada.

11. It is no doubt true that the stand taken by the landlady relating to maktha had not been accepted and it was fixed as 72 kata bags per year only. The said finding became final and the Counsel for the landlady in all fairness had not argued this Point at all. The main contention of the Counsel representing the revision petitioner/ tenant is that in view of the fact that the demand draft was ultimately encashed by the landlady as on the date of filing of the eviction petition, mere were no arrears and hence the tenant cannot be evicted at all. Reliance was placed on Vinukonda Venkata Ramana and Ors. v. Mootha Venkateswara Rao and Ors., : 2001(6)ALD27 (FB), P.N, Rao v. K. Radhakrishnamacharyulu, : AIR1978AP319 and A. Abbayi v. R. Choultry, : AIR1974AP139 . The Counsel representing the landlady had placed strong reliance on the judgment delivered by this Court in CRPNo. 2647 of 2003 where, in a similar fact situation, the applicability of doctrine of waiver had been specifically negatived. Reliance also was placed on the decision referred. Deity Shri Kesava Janardhana and Venugopala Swamy Varlu v. A. Pulla Rao and Ors. (supra) wherein it was held:

'It would be seen the provision Section 13, does not speak of any wilful default by the tenant but merely says that the tenant has 'failed to pay the rent due by him'. Once the sum to be paid is an ascertained sum and is due by the tenant, the amount has to be paid by the due date on pain of eviction for non-payment. The appellate Tribunal hence was right to hold the concept of wilful default, as is available in rent control legislations, not to be incorporated in the Act.'

12. Yet another contention was raised that there is no specific finding given by the Appellate Authority relating to default for the year 1984-85 and what was decided was in relation to 1985-86 only. As can be seen from the findings recorded by the Appellate Tribunal, at Para 10, all the details had been narrated including the prior litigations between the parties i.e., rent suits, and at Para 11 a finding had been recorded that maktha for petition schedule property is 72 bags only/ Further, findings had been recorded at Paras 12 and 13 by the Appellate Tribunal as hereunder:

'The next question that falls for consideration is, whether the respondent has committed default in payment of maktha for the years 1984-85 and 1985-86. The finality of the judgment is not challenged by both parties. The oral testimony of PW1 clearly reveals that the respondent has committed default in payment of agreed maktha for the years 1984-85 and 1985-86, As seen from the testimony of PW1 and RW-1, the respondent has approached the petitioner in the month of March, 1986 along with a demand draft for Rs. 9,000/-. The petitioner got issued a reply notice on 3-4-1986. Ex.A1 is the Xerox copy of demand draft for Rs. 9,000/-. The contents of Ex.A-2 coupled with the testimony of PWs.1 and 2 clearly reveal that the respondent has not paid the maktha for the year 1985-86 on or before 15th January of 1986. It is not in dispute that the due date for payment of maktha is 15th January of every succeeding year. A cultivating tenant can pay the maktha within one month after expiry of the due date. The grace period for payment of maktha is one month only. Under any circumstances, the cultivating tenant has to pay the maktha on or before 15th February of every succeeding year. In the instant case, the testimony of RW1 reveals that he approached the petitioner on 18-3-1986 with a demand draft for Rs. 9000/-. This clearly indicates that the respondent did not pay maktha for the year 1985-86 even within the grace period also and thereby he committed default in payment of maktha for the year 1985-86. Delayed payment of maktha will not cure the defect. Mere default in payment of maktha by itself is sufficient to evict the cultivating tenant, Ex.A10 is judgment in OS No. 313/86. The Trial Court gave a finding that the respondent herein failed to pay maktha for 1985-86 in Para 10 at Page 9 of its judgment. This finding became final. Even otherwise the respondent did not pay maktha to the petitioner for the year 1985-86 within the stipulated time or grace period. The evidence on record clearly reveals that the respondent committed default in payment of maktha for the year 1985-86 and paid the same after grace period. The Trial Court rightly appreciated the oral and documentary evidence and arrived at a conclusion that the respondent committed default in payment of maktha for the years 1984-85 and 1985-86.

In the light of the foregoing discussion, I have no hesitation to hold that the maktha to the petition schedule property is 72 kata bags per year and the respondent committed default in payment of maktha for the years 1984-85 and 1985-86 and thereby the petitioner is entitled to evict the respondent from the petition schedule property. The respondent is not entitled to squat on the petition schedule property without paying maktha in time.'

Clear findings were recorded that the payment was made beyond the grace period and concurrent findings had been recorded by both the Tribunals below relating to default. There is no plea of waiver even and the conduct of the party also had been taken into consideration while ordering eviction. In the light of the same and also in view of the limitations imposed while exercising powers under Article 227, I am not inclined to disturb the concurrent findings recorded by both the Tribunals below.

13. However, Sri E.V.V.S. Ravi Kumar, the learned Counsel representing the revision petitioner/tenant had brought, to my notice that there is standing crop of paddy raised by the tenant and liberty may be given to the tenant to take the said paddy crop. It is needless to observe that the revision petitioner/tenant is at liberty to take the paddy crop and nothing beyond thereto. Except giving this direction relating to the standing paddy crop, no other relief can be granted to the revision petitioner/tenant.

14. Accordingly, the civil revision petition shall stand dismissed. No costs.