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Mallampalli Mallikarjuna Rao and anr. Vs. Godavarthi Seshamma and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1976 and 2232 of 1969
Judge
Reported inAIR1971AP298
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 4, 6 and 10
AppellantMallampalli Mallikarjuna Rao and anr.
RespondentGodavarthi Seshamma and anr.
Appellant AdvocateA.L. Narayana Rao, Adv.
Respondent AdvocateG.R. Mohan Rao, Adv.
Excerpt:
.....not constitute wilful default. - - form the evidence one can easily gather that there is a good deal of business activity around the leased premises, not to speak of the admission that part of the leased premises had been used as godowns for the storage of paddy or fertilisers. i am satisfied, on a comprehensive view of the matter,.that the fixation of fair rent of rs. the circumstances clearly indicate that after the decision of the rent controller, the tenant did not accept it as the final adjudication but has takes action to have the decision set aside. when he failed in that attempt. in some other cases dealing with like situations, the expression was assigned several distinct shades of meaning. 20. the result is that both the revision petitions fail and are dismissed......application, namely, one for eviction, as stated above, the rent controllers' decision fixing the fair rent was made on april 17, 1965. after the tenant preferred an appeal challenging the order of enhancement he applied for stay of rent. the application in that behalf was made on 15-9-1965 and it was i.a.no. 1330 of 1965. it was dismissed on 15-10-1965. the landlord presented the application taken on file and registered as was taken on file and registered as a.b.a. no.27 of 1966. the tenant moved in court in i.a. no.288 of 1966, for a direction dispensing with the payment of the enhanced portion of the rent. this application was disallowed by the court on 28-2-1966 with the direction that the amount should be deposited within ten days. this direction was complied with by 9-3-1966.6......
Judgment:
ORDER

1. These two revision petitions arise out of the proceedings under the Andhra Pradesh Building under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act.

2. The facts that have given rise to the two petitions may briefly be stated. On 5-11-1963 the landlord presented an application for the enhancement of the rent. The petition for enhancement A.B.A. No . 42 of 1963, was decided on 27-4-1965. The leased premises consist of two distinct parts, one used for a residential purpose and the other for a non-residential purpose and the other for a non-residential purpose. The premises are situate in an important locality at Tenali. It is borne out by the evidence that the Indian Bank is located opposite the leased premises. The Post Office is located in the immediate vicinity. Form the evidence one can easily gather that there is a good deal of business activity around the leased premises, not to speak of the admission that part of the leased premises had been used as godowns for the storage of paddy or fertilisers.

3. On the date of the application for enhancement the stipulated rent was Rs. 100/- per mensem. Even by 1961, the annual letting value of the premises, according to the municipal registers, was Rs 2,520/- and the property tax was considerably lower. The application for enhancement was based, among others, on the ground that the annual letting value was entered in the municipal registers as Rs. 2,520/- and that the landlord was called upon to property tax on the basis of that entry.

4. The application for enhancement was contested by the tenant. The rent controller, however, overruled the opposition of the tenant and fixed the rent at Rs.210/- per mensem. The Appellate Authority upheld the decision C.R. P. No.2232 of 1969 is preferred by the tenant who questions the validity of the enhancement.

5. The order of enhancement however, has given rise to the other application, namely, one for eviction, As stated above, the rent Controllers' decision fixing the fair rent was made on April 17, 1965. After the tenant preferred an appeal challenging the order of enhancement he applied for stay of rent. The application in that behalf was made on 15-9-1965 and it was I.A.No. 1330 of 1965. It was dismissed on 15-10-1965. The landlord presented the application taken on file and registered as was taken on file and registered as A.B.A. No.27 of 1966. The tenant moved in Court in I.A. No.288 of 1966, for a direction dispensing with the payment of the enhanced portion of the rent. This application was disallowed by the Court on 28-2-1966 with the direction that the amount should be deposited within ten days. This direction was complied with by 9-3-1966.

6. The ground of eviction was that there was wilful default in payment of the rent inasmuch as notwithstanding the order of enhancement the tenant wilfully refrained from making payment of the enhanced rent. This plea prevailed before the Rent Controller who by his order dated 13-10-1966 ordered eviction. On appeal to the Appellate authority, On appeal to the Appellate authority, the decision was reversed. In the opinion of the Appellate Authority, there was no wilful default even if it were to be held that there was a non-payment of the due rent, The landlord has preferred C.R.P.No.1796 of 1969 against the appellate Authority's decision which negatived his prayer for eviction.

7. These who revision petitions were directed to be heard together. It is logical to deal with C.R.P.No.. 2232 of 1969 in the first instance, because if that petition succeeds, the claim for enhancement of the rent fails and consequently no question of default in the payment of rent would arise. Mr. G.V. R. Mohan Rao for the petitioner contends that the enhancement of rent has been made in violation of the terms of Section 4 of the Act. He contends that in fixing the fair rent under the provisions of Section 4, the main criterion should be the prevailing rates of rent, in the locality in respect of comparable premises during the twelve months' period prior to April, 1944. The alternative criterion is the rental value as entered in the property tax assessment book of the concerned lock authority relating to the same period. He then pointed out that the maximum enhancement that is permissible under the Act is specified by sub-sections (3) and (4) and that in the instant case, the rent fixed by the Controller and confirmed by the Appellate Authority is in excess of the permissible enhancement. According to him, even if the entire premises are deemed to be a non-residential buildings, the Controller can allow no more than 75 per cent, increase over the pre-existing rent.

8. He relied upon the decision in Ambavathi v. Supdt., King George Hospital, (1958) 2 Andh WR 329 Wherein a Division Bench of this Court observed:-

'Taking these three circumstances together the controller fixes the fair rent. But, in fixing the fair rent, his discretion is controlled by Section 4 (3) which says that in the case of residential buildings, if the rate of rent of rental value exceeds Rs.50/- per mensem, the Controller can allow only upto 25 per cent, on such rate of rental value.'

The learned Judges pointed out that the landlords in not entitled to ask for a fair rent exceeding the limits prescribed by Section 4 (3) (iii) of the Madras Buildings (lease and Rent Control) Act. That decision construed the provisions in the Rent Control Act of 1949. But the provisions of the repealed Act and of the Act now in force are identical in all essential particulars. The contention urged on behalf of the petitioner is that the discretion of the Court in filing the fair rent can be exercised only consistent with the optimum rise that the statute permits. Judged by this test, it is contended the enhancement allowed by the Court below is illegal.

9. My attention was also drawn to the decision in M.A. Mohamed Burhanuddin v. The Official Trustee of Madras (1961) 2 Mad Official Trustee of Madras (1961) 2 Mad LJ 29. In construing a corresponding Act in the Madras State, a single Judge of the Madras High Court expressed the view that the discretion given to the Rent Controller to make an increase is limited to the maximum prescribed by the statute.

10. In answer to this contention, Mr. Narayana Rao for the respondent urged that the fixation of rent at Rs. 210 per mensem was not made solely in relation to the provisions of Section 4. His submission is that in allowing the application for enhancement,. it was permissible for the controller not only to act in conformity with the provisions of Section 4 of the Act but it was competent for that authority to act concurrently under the provisions of Section 6 also. In other words, the counsel finds a justification for the fixation done by the Courts below as a result of the action taken simultaneously by the Controller under Sections 4 and 6. It is further submitted that there is no impediment for the Court effecting concurrently an enhancement under Sections 4 and 6 of the Act if the circumstances of the case warrant action under both the provisions.

11. A glance at Section 6 shows that where the amount to taxes and cesses payable by the landlord to a local authority is enhanced. the landlord shall be entitled to claim half of such excess from the tenant in addition to the rent payable for the building. It is true that Section 6 uses the expression, 'after the fixation of the fair rent under Sec. 4'. But this expression in my opinion ought not to be construed in a narrow sense. If the contention of the learned counsel for the petitioner is upheld it would amount to this; that there must be some inevitable time lag between the order fixing the fair rent and the increase thereof pursuant to the provisions of Section 6. It cannot reasonably be said that the intention of the legislature was to throw for sometime at least, the entire burden of the tax increase on the landlord itself. The dominant intention of the legislature is to make the landlord and the tenant share the additional tax burden. The expression. 'after the fixation of the fair rent under Sec. 4' must be construed to harmonize with the intendment and spirit of Section 6. The phrase, 'after the fixation of the fair rent under Section 4' cannot be construed to mean that some interval of time must be allowed to elapse before action can be taken under Section 6. It must be read in the sense that the increase of rent under Section 6 is permitted in addition to the fair rent that has been fixed under the Act. The intention of the legislature in enacting Section 6 is not to make the determination of the fair rent conclusive for all time, but to permit increases in certain contingencies. It is to provide for the subsequent additions to the fair rent that Section 6 has been enacted. If we bear this legislative intention in mind. the meaning to be assigned to the expression adverted to above is made quite clear. I am of opinion that the phrase 'after the fixation of the fair rent under Section 4' can only mean, ' in addition to the fair rent.' The expression merely empahsises the position that notwithstanding, the fixation of the fair rent under Section 4 further increase under Section 6 is permissible. The argument of counsel that action cannot be taken simultaneously under Sections 4 and 6 has no merit in it and is based upon a misunderstanding of the provisions of Section 6.

12. The conclusion reached by me independently of any precedent on the interpretation of Sections 4 and 6 seems to be in consonance with the view taken by Chandraskehara Sastry, J, in Showkat Ali, v. Fatima Begum, (1965) 1 Andh LT 366 where the learned Judge dealt with the provisions of the corresponding Hyderabad Act 20 of 1954.

13. It is, therefore, necessary to ascertain whether the fixation of fair rent is in excess of the enhancement permissible under both Sections. Judged from this angle, it cannot be said that the fixation of the fair rent at Rs. 210/- in excessive., It is true that the Courts below did not rest their decision on this basis. but when it is established that no grater burden has been cast on the tenant than what is warranted by the provisions of the Act, it is immaterial that the authorities fixing the fair rent did not choose to assign the correct legal basis for their action. I am satisfied, on a comprehensive view of the matter,. that the fixation of fair rent of Rs. 210 was in conformity with the provisions of the Act. C.R.P.No. 2232 of 1969 therefore fails.

14. It now remains to consider whether the application for eviction is sustainable. The events that have led to the non-payment of rent by the tenant were already set out by me in the narration of facts. The short question is, where there was a default; and if the omission amounts to a default, whether it should be described as a wilful default. The circumstances clearly indicate that after the decision of the rent Controller, the tenant did not accept it as the final adjudication but has takes action to have the decision set aside. Sometime necessarily would have elapsed before the certified copies had been obtained. The appeal was presented in September 1965 and immediately there was an application made for stay of payment of the enhanced portion of the rent. It must be remembered that there was no default in the payment of the rent was it originally stood. At one stage, the tenant has taken up the plea that there is justification for non-payment of causes the enhancement took effect only from the date of the order. But this position was not persisted in before the appellate. Court. Soon after the petition for eviction was filed, the tenant the petition for eviction was filed, the tenant against moved the Court for a direction in regard to the payment of the disputed sum. When he failed in that attempt. he made the deposit within the time allowed by the Court.

15. My attention has not been drawn to any reported decision which serves as a binding precedent or even as a persuasive guide. The word 'wilful' is in familiar use in every branch of law. In its primary sense, it connotes that what has been done has, arisen from the spontaneous action of the doer of the act his will. When used in his sense it does not imply some-thing blamable has been done In Wheeler v. New Merton Board Mills (193) 2 KB 669, it was said that 'wilful does not necessarily connote blame although the word is more commonly used of bad conduct than of good. In Lomas v. Peek, (1947) 2 All ER 574-57 Lord Goddard, C.J. observed:

'If a man permits a thing to be done, it means that he gives permission for it to be done and if a man gives permission for a thing to be done, he knows what is to be done or is being done, and if the knows that, it follows that it is wilful.'

The decisions referred to above, construed the word in its primary sense as a things knowingly and consciously done of the free will the doer, But this is not the meaning assigned to it in all branches of law. 'Wilful' is an expression which is essentially relative and the meaning varies with the context, the intendment or objective of a statute in which the expression occurs and a host of other circumstances which it is not possible to envisage. The word has acquired various shades of meaning, and the diversity of uses has thrown the primary meaning in the shade Even in the interruption of the word in relation to cases arising under the same statute, a bewildering diversity infrequently noticeable. In construing the expression 'wilfully and falsely' used the title or description of 'physician' contrary to Section 40 of the Medical Act, 1858 the Courts in England described the situation as a 'complete fog'. The cases decided under the Rent Control Acts in this country offer a typical illustration of the 'Complete fog' that envelopes the meaning of the expression.

16. It is clear that in the Rent Control Act, the word wilful is not used in the narrow and primary sense when it occurs in the phrase 'wilful default'. The word default implies not doing something that is reasonable or necessary something required to be done. When it is coupled with the word 'wilful' the phrase is manifestly intended to signify something more than a mere omission or default. The expression 'wilful default' has been the subject-matter of several decisions in other branches of law. The Merchant Shipping Actin England has used the expression 'wilful default of the person in charge.' In cases arising under that Act, the view taken was that it refers to acts arising by the fault of such person, whether intentional or negligent. In the law relating to trustees, wilful default by a trustee is understood as 'the wilfully not doing something which he ought to do as distinguished from doing something which he ought not to do'. In Re. Vickery, (1931) 1 Ch 572 the use of the words 'wilful default' of a trustee' were held to imply such either a consciousness of negligence or breach of duty or recklessness in the performance of a duty. In another line of cases, where the question arose in respect of 'wilful default of the vendor' in conditions of sale, courts had been called upon to construe the expression. In Re. Young and Harston. (1885) 31 Ch D 168 at p. 174 Bowen. L. J. understood it to mean as not doing what is reasonable under the circumstances with the knowledge that the omission will cause delay. In some other cases dealing with like situations, the expression was assigned several distinct shades of meaning. It was understood as follows:

'To make up one's mind not to verify a statement is 'wilful': but simply not to think about verifying it is not 'wilful'.'

A mistake by the vendor as to his right, if it be bona fide was held to be not wilful default.

17. From the examples cited above, it is clear that the emphasis is not on knowingly doing or abstaining from doing a thing, but rather on the unreasonable conduct or on a mental attitude which is not bona fide. It follows that the primary meaning of the word 'wilful' as an act being spontaneous or arising out of free will has been supplanted in several branches of law. The use of the expression 'wilful default' in the Rent Control Act affords the clear intention of the legislature that it is not the mere omission to do a thing that is intended. The test, in my opinion, should be whether the person failing to pay the rent had reasonable ground for the belief that the omission to pay rent did not constitute default. It is useful to draw a line between two types or broad divisions. On the one had may be cited cases where the omission to pay is shown to be negligent and is lacking in any reasonable excuse or bona fide belief. On the other side of the line may be placed cases where a reasonable ground for a bona fide belief that no default has occurred has existed.

18. If one takes into account all the circumstances of the instant case, it is clear that the tenant was acting under the misapprehension that the liability in regard to the enhanced portion of rent had not become final and that the non-payment of the enhanced portion of the rent did not constitute a default. It is true that this was based on a misapprehension of the legal position. It is also true that the ignorance of law is not excuse and cannot be urged as a ground for the condonation of an omission. But the question now is whether the default can be described as a wilful default. I am of opinion that the circumstances of the case do not furnish a parallel to cases where the tenant acts with supine indifference to the obligations or is recklessly indifferent to them. The observations of Anantanarayana Chief Justice in Nagarathinam Pillai v. Mahadavier 91969) 2 Mad LJ 492 tend to emphasize that in order to constitute wilful default, there must be decree of culpability associated with the omission.

19. It is obvious that when the issue as to the enhancement was still before the Higher Court and the final decision was not rendered the tenant has the notion misconceived though it was that the obligation to pay the enhanced rent was not on a par with the obligation incidental to the admitted rent. The omission to pay the enhanced portion of the rent cannot be held to be wilful default. I am consequently of opinion that the Appellate Authority did not act erroneously dismissing the application for eviction.

20. The result is that both the revision petitions fail and are dismissed. There will be no order as to costs in both the petitions.

21. Revision dismissed.


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