1. All these matters are between the same parties and have been the offshoots of certain common decisions between them by the trial Court and the first appellate Court, filed under various provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, hereinafter referred to as 'the Act'. Actually they are between one P. Rajanna said to be a tenant in the demised premises and the owner Smt. K. Lalitha Reddy and her husband K. Venkataraniana Reddy who appears to be managing the transactions of his wife in relation to the premises. The proceedings of the trial Court (Rent Con-troller-cum-District Munsif, Madanapalle) and the appellate Court (Sub-Judge, Madanapalle) which led to the present cases in this Court are tabulated as hereunder in Table-A.
Sl. No. Case No. By whom, against whomand under What provision.
Name of the Court Result with date
1. R. C. C. 12/83 By Mr. P. Rajanna the tenant u/S. 8(5) of the Act against Smt, K. Lalitha Reddy the owner (landlord) and her husband K.
Venkataramana Reddy Rent Controller-cum-District Munsif, Madanapaile (Mr. A. Radhakrishna Rent Controller) Dismissed on 19-6-1990
2. R. C. C. 3/85 By the landlord against the tenant U/S.
I0(2)(i)(ii)(b), (c) and v (iii) of the Act.
Allowed on 19-6-1990
3. C. M. A. 2/90 By the tenant against the landlords for setting aside the order dt. 19-6-90 passed in R. C, C. 3/85.
Sub-Judge Madana-palle (Sri P. Tirupathi Reddy, Sub-Judge) Dismissed on 28-6-93
4. C.M. A. 3/90 By the landlords against the tenant challenging the (common) order dated 19-6-1990 passed in R. C. C. 12/83 do-
Partly allowed on 28-6-95
5. E. P. 6/93 By the landlords against the tenant under Order 21, Rule 35 of C.P.C. for execution of thedecreeinR.C.C 3/85 passed on 19-6-1990.
Principal District Munsif, Madanapaile Allowed on 9-2-1994 The following Table-B indicates the details and particulars of the revision petitions filed in this Court, of each of the parties as against the decisions of the Courts below:--
TABLE - B Sl. No. Case No. By whom and against whom Against which order with date From which Court
1. C. R. P. 2348/93 By the tenant against the landlords C. M. A. 2/90 dt. 28-6-93 Sub-Judge, Madanapalle
2. C.R. P. 2349/93 do-
C. M. A. 3/90 dt. 28-6-93 do
3. C. R. P. 2811/93 By the landlords against the tenant do do
4. C. R. P. 3437/93 do C. M. A. 2/90 dt. 28-6-93
5. C. R. P. 538/94 By the tenant against the landlords E. P. No. 6/93 dt. 9-2-94 Principal District Munsif, Madanapalle As all the proceedings supra project from common orders-judgments of the trial Court and the appellate Court involving common questions of law and facts between the same parties, having heard them together, they are being disposed of by means of this common Judgment.
2. The command of the convenience prompts us to refer to Smt. K. Lalitha Reddy and her husband K. Venkataramana Reddy as petitioners 1 and 2 and P. Rajanna, as respondent, as they were styled in the eviction petition -- R. C. C. 3/85 on the file of the Rent Controller-cum-District Munsif, Madanapalle.
3. Petitioner No. 1 is the wife of petitioner No. 2. Petitioner No. 1 is the owner of the demised premises which is referred to as the schedule premises (non-residential building) bearing H. No. D. 14/137, T. M. Road, Madanapalle Municipality.
4. The respondent claiming to be a tenant in the schedule premises at an agreed rent of Rs. 250/- per mensem alleged that he was paying the rent personally and also by way of demand drafts or through the messengers till March, 1983 and when he sent the rent for the month of April, 1983 by Money Order to petitioner No. 2, it was refused and returned back to him. Therefore, he sent a notice to petitioner No. 2 which was replied by him demanding higher rate of rent. He sent Rs. 500/- by money order covering the rent for the months of May and June, 1983 to petitioner No. 2 who refused to receive the same. Therefore, he had to file a petition under Section 8(5) of the Act, seeking permission of the Court to deposit the rent every month at the rate of Rs.250/-. Petitioner No. 2 resisted the petition actually denying the respondent to be the tenant in the premises, denying the rent to be paid at Rs. 250/ -per mensem and instead, pleaded that one Pulla Reddy was a tenant in the premises and the respondent and one Venkata Reddy were unlawfully inducted into the schedule premises, that they proposed to pay a rental of Rs.250/-per mensem and to deduct Rs. 100/-every month towards the repair charges of Rs. 15,000/- which was said to have been spent by them on the schedule premises, that he demanded Rs. 1,000/- per mensem towards rent for which they were not agreeable, Venkata Reddy did not continue in the premises and the respondent was sending Rs.250/- per mensem to petitioner No.2 under the circumstances, he committed default in paying rent consistently and his petition may be dismissed. In the meanwhile, petitioners filed the eviction petition against the respondent under Section 10(2)(a)(ii)(b), (c) and (iii) of the Act alleging that he committed wilful default in paying the rent, he sub-let the premises without the consent of the petitioner, he committed the acts of waste and damage to the schedule premises by opening a pit as a sump storing the drums by the side of the wall and that he used the premises for a different purpose than the one for which it was let out. The respondent resisted the eviction petition by denying the alleged wilful default on his part although he has prepared to pay the rent as agreed and sent the rent by M. O. and filed the petition for permission to deposit the rent, he denied the sub-lease, the use of the premises for a purpose different from the one for which it was let out and alleged acts of damage and waste to the schedule premises.
5. Both the matters were tried together by the learned Rent Controller and common evidence was recorded wherein petitioner No. 2 examined himself as P. W. 1 and a witness as per P. W. 2 and the respondent examined himself as R. W. 1 and six witnesses as per R. Ws. 2 to 6 respectively. No documents were got marked by the petitioners whereas, the respondent got Exs. B-1 to B-27 marked by way of documentary evidence. Affording opportunities to both the sides to argue and on the basis of the materials before him, the learned Rent Controller held that the agreed rate of rent is Rs. 250/- per mensem, there was no wilful default, that the respondent had sub-let the premises and committed acts of waste and damage to the building and used it for a purpose different from the one for which it was let out and subsequently allowed the petition of the respondent for permission to deposit the rent by 15th of every month and further, allowed the eviction petition on the proved grounds stated above with two months' time to the respondent to vacate the premises. Thus the common order passed in the two proceedings by the learned Rent Controller came to be challenged by both the parties before the learned Sub-Judge, Madanapalle as detailed above (in Table-A). An application was filed to adduce additional evidence by the petitioners in the appellate Court which came to be allowed whereby petitioner No. 2 was recalled and examined and Exs. A 1 to A 5 came to be marked on their behalf. After hearing both the sides and on the assessment of the materials before him including the impugned judgment of the learned Rent Controller, the learned Sub-Judge fixed the rent at Rs. 500/ - per mensem, confirmed the finding that there was no wilful default on the part of the respondent in paying the rent and confirmed the findings of the learned Rent Controller on the grounds of eviction and disposed of the appeals of the respective parties as stated above granting fifteen days' time to the respondent to vacate the schedule premises.
6. The respondent iN his revision petition filed a miscellaneous petition for staying the operation of the judgment of the learned Sub--Judge and it was ordered by this Court with a stipulation that he should pay or deposit all the arrears of rent within four weeks from 9-7-1993 the date of the order, which came to be extended by two weeks on 4-9-93. In the meanwhile, the petitioners had filed E. P. 6/93 on the file of the Principal District Munsif, Madanapalle to execute the order of eviction passed in their favour and it was resisted by the respondent on the ground that he had obtained the order of stay from this Court as above and after hearing both the sides the learned Principal District Munsif came to the conclusion that since the respondent had not fulfilled the condition imposed in the order of stay passed by this Court, overruled his objections on 9-2-94 and directed the execution to proceed and admittedly, by executing the order of eviction, the respondent has been evicted from the schedule premises and petitioner No. 1 has been put into possession of the same. The respondent has challenged the order of the learned Principal District Munsif dated 9-2-94. Mr. Narayana, the learned Advocate for the respondent has submitted that he has filed an application under Section 144 of C. P.C. to restore possession of the schedule premises to the respondent in case he ultimately succeeds in his revision petitions in this Court.
7. Number of formal grounds have been raised by both the parties in their respective revision petitions. While they were presented to this Court during the arguments they have been subjected to the definite contentions which may be conveniently recorded for consideration.
8. Mr. Sundar Rajan the learned advocate for the petitioners has raised the following contentions:
(1) (a) The finding of the learned Rent Controller regarding the rate of rent at Rs. 250/- per mensem and also the finding of the learned Sub-Judge about the rate of rent at Rs. 500/- per mensem are opposed to facts, the evidence in the case and the law operating upon the facts and circumstances of the case.
(b) The agreed rate of rent ought to have been fixed at Rs. 1,000/- per mensem.
(c) The finding of both the Courts below that there was no wilful default in payment of rent by the respondent is totally opposed to the admitted facts and the evidence in the case and also the law operating in the case and that, therefore, the finding of the trial Court in regard to the rate of rent and regarding the ground of eviction of wilful default in payment of rent are liable to be set aside.
(2) The concurrent findings" of fact regarding the grounds of eviction by the Courts below is based on evidence in the case and cannot be interfered with by this Court in a revision petition. In addition thereto, the respondent was liable to be evicted even on the ground of wilful default in payment of rent and as a whole, he cannot succeed in his revision on any ground.
(3) The order of the learned Principal District Munsif in the execution petition is totally justified since patently, the respondent had not fulfilled the stipulation of the order passed by this Court in C. M. P. 10666/93 dt. 9-7-1993.
(4) The order of eviction of the Courts below and the execution of the same by the learned Principal District Munsif is totally justified and deserved to be confirmed.
(5) The petitioner is not entitled for restoration of the possession of the schedule premises even if he succeeds in this Court in his revision petitions as there is no provision in the Act or in any law similar to S. 144 of C.P.C. which cannot be applied to the proceedings under the Act.
9. The contentions of Mr. P. Narayana, the learned advocate for the respondent are these:
(1) The eviction petition is not maintainable since the petitioners denied him to be the tenant in the schedule premises since beginning and since a petition for eviction would lie only when there is relationship of landlord and tenant between the parties. Thus, the eviction petition against the respondent ought to have been dismissed in limine for want of jurisdiction to the Court to entertain the petition.
(2) The concurrent findings of fact recorded by the Courts below regarding the wilful default cannot be interfered with in a revision petition.
(3) The findings of both the Courts below regarding the remaining grounds of eviction under Section 10(2)(ii)(a)(b) and (iii) of the Act are against the evidence or even, without sufficient evidence and, therefore, the impugned order of eviction against the respondent is illegal and liable to be set aside.
(4) The order of the execution Court in E.P. is illegal and against the admitted facts and at any rate (sic) and therefore, liable to be set aside.
(5) The respondent has been dispossessed of the schedule premises by executing an illegal order of eviction and an illegal order passed by the executing Court and, therefore, he is entitled to be restored to the possession of the same when he succeeds in his revision petitions in this Court.
10. The attack of the respondent regarding the jurisdiction of the Rent Controller to entertain the eviction petition was in a way justified due to the conduct of the petitioners since inception. But a deep look into such a controversy between the parties beat back such a contention without any success. The respondent claimed to be a tenant in schedule premises and when petitioner No. 2 refused to receive the rent sent by him by money order admittedly, had to approach the Court seeking permission to deposit the rent for three months amounting to Rs. 750/- and to continue the deposit of rent at the rate of Rs. 250/- per mensem. The petitioners vociferously denied the respondent to be the tenant in the schedule premises much less with a stipulation to pay the rent at the rate of Rs. 250/- per mensem and on the other hand put up a strategic defence with a camouflage admitting his possession and agreeing to remain as a tenant through one Pulla Reddy said to be a former tenant with certain proposals by him and counter-proposals by petitioner No. 2 without reaching any finality. The extent to which the petition of the respondent was resisted was that he should not be given permission to deposit the rent. If that was the only conduct of the petitioners in treating the respondent in the schedule premises as such, no petition for eviction under Section 10 of the Act could have been maintained. But resiling from such a strategy, the petitioners adopted a different strategy by filing the eviction petition under Section 10 of the Act on the ground of eviction stated above behaving as if they had to accept him as a tenant under certain circumstances although they did not agree for the rate of rent or payment of rent at Rs. 250/ - per mensem and actually claimed it to be Rs. 1000/- per mensem. In that also, the pleas are not consistent. On a careful reading of the pleas and the allegations made in the eviction petition, it is apparent that the petitioners have conceded the respondent to be a tenant in the schedule premises and sought for eviction on the clear grounds of eviction supra. It is true that the jurisdictional facts are to be assessed first by a Court or trie Rent Controller before exercising the jurisdiction. The law is beyond doubt that unless the relationship of landlord and tenant exists between the parties, a petition for eviction under Section 10 of the Act would not lie nor a Court or the Rent Controller dealing with such a petition can assume jurisdiction either to entertain the petition or to give the remedies claimed therein. Such jurisdictional facts are to be gathered not only from the pleadings, but also from the evidence and the totality of the facts and circumstances in a particular case. An isolated statement of fact or a conduct of a party to a petition under Section 10 of the Act, cannot determine the question of jurisdiction or otherwise the presumed jurisdiction of a Court or the Rent Controller would become a fallacy or a myth or a play ting to an individual and not as a part of the rule of law. The contention of Mr. Narayana, the learned Advocate for the respondent that the parties cannot confer jurisdiction on the Court or the Rent Controller needs no examination or support from any precedent or authority. At the same time, it must be remembered that a party to a litigation cannot snatch away the jurisdiction by making statements torn out of the context or the totality of the circumstances to cater his whims and fancies. The respondent himself approached the Rent Controller first with a definite plea that he is a tenant in the schedule premises under the petitioners and, therefore, sought permission to deposit the rent as he was unsuccessful in tendering or actually paying the same to them. He pursued the same stand even in the counter to the eviction petition. He did not divert from such a stand even in his evidence when he stood to test on oath in the witness-box. Petitioner No. 2 as P.W. 1 was also made to admit it in the cross-examination although with some conditional expressions. The fact that petitioners sought to evict the respondent from the schedule premises under Section 10 of the Act on certain grounds therein, reinforced the juris-dictional facts relating to the status of the parties as landlord and tenant and the vinculum juris between them to produce the result of contract of tenancy or lease so as to invoke the jurisdiction of the Rent Controller under the Act to examine the controversies between them and to render a decision on them after holding an enquiry. Significantly enough such a contention of jurisdiction appears to be not even pursued and thus no point for determination was either raised or was determined by the trial Court. Such a contention was also not pursued before the learned Sub-Judge in the appeal by the respondent. Therefore, but for the petitioners conduct as above initiated at the beginning, no such question of jurisdiction for the Court regarding the relationship of landlord and tenant between the parties neither existed nor continued at any stage after the eviction petition was filed, much less survived before this Court for determination. Apart from lack of merit in the contention on facts and circumstances, the law appears to be against it. The "lease law" squarely bunks the par-ties into the vinculum juris of landlord and tenant. 'Lease' is not defined in the Act, whereas 'landlord' and 'tenant' pegs into the definitive provisions of Sections 2(vi) and 2(ix) of the Act as hereunder:
Section 2(vi): 'Landlord' means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another person or on behalf of himself and others or as an Agent trustee, executor, administrator, receiver or guardian or who would so receive the rent or been entitled to receive the rent, if the building were let to a tenant.
Section 2(ix): "Tenant" means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority.
(Prominence stressed) In this case, the rent is admittedly payable by or on account of the respondent for the schedule premises and so the Act calls him a tenant. Petitioner No. 1 is the owner of the schedule premises and she is entitled-to receive the rent in regard to the schedule premises (building). Respondent No. 2 has been receiving the rent in regard to the schedule premises on behalf of petitioner No. 1 and also as her agent admittedly. So, both the petitioners have the status of the landlord in regard to the schedule premises (building). Despite the Act proposes the regulation of the leasing of buildings, fails to define that expression ('Lease'). Therefore, we are to understand the effect of the definition of landlord and tenant as above, to result into a concept of lease in the context. Both the sides abundantly suggest that the law in the Act which is special law, never contemplates to utilise Chapter V of the Transfer of Property Act relating to leases. The distinction thus between the 'lease' under the Act and for the purpose of the Act 'lease' under Chapter V of the Transfer of Property Act requires to be examined. Section 105 of the Transfer of Property Act while defining the 'lease' as a transfer of immovable property with specific ingredients enumerated therein, calls the transferor a lessor, the transferee a lessee, the price as the premium and the money, share, service or other thing to be rendered, a rent. So, the lease therein is a creature of concluded contract between the parties to be governed by Chapter V of the Transfer of Property Act, the provisions of Indian Contract Act, the law of Contract and real property. Therefore, it is said that the leases, for the purpose of the Act which is a special Act, are not governed by such general laws. So read in the context of the object and purpose of the Act, the definitions of 'landlord' and 'tenant' supra under the Act confers the status on the parties to a lease with reference to the building or the premises and strictly not concerned with the contract between the parties except in regard to rent. A right of the landlord to recover rent with a corresponding duty or application for the tenant in regard to the building is the only and the main ingredient to confer such a status on them within the meaning of Section 2(vi) and Section 2(ix) of the Act. So, the relationship between the parties as emanated from such a legal status contemplated in the definitions is a fictional one with reference to the demised premises and not with reference to the persons. It may also be examined from the angle of protection of eviction of the tenant in the premises due to an absolute non obstante clause in Section 10 of the Act barring few exceptions in sub-clauses (1), (2) therein and Sections 11, 12 and 13 of the Act. The Act being protection law for a tenant against eviction thus envisages the concept of jurisdiction to a Court in a different sense than the normal understanding of the concept and at any rate not in the sense what parties or pundits in the legal world propound. Mr. Sundar Rajan the learned Advocate for the petitioners is thus right in contending that the Court or the Tribunal (Rent Controller) decides its jurisdiction on the basis of jurisdic-tional facts in a case and not the parties. So, contention challenging the jurisdiction of the Rent Controller to entertain the eviction petition deserves to be rejected.
11. The ground of 'wilful default' of the respondent in paying the rent, for eviction under Section 10(1) and 10(2) (i) of the Act has been found against the petitioners. As a part of such a ground two questions were before the Court viz., (a) the rate of rent, and (b) the wilful default in payment of rent by the respondent till the eviction petition was filed.
12. According to the respondent, the agreed rate of rent is Rs. 250/- per mensem. The petitioners were not consistent in this regard. In the beginning, they put it at Rs. 250/- per mensem commencing with the former Pulla Reddy, made it Rs. 500/- per mensem at one stage, later on scaled it down to Rs. 400/- per mensem having been settled through the intervention of somebody and ultimately jacked it up to Rs. 1000/- per mensem which was demanded by petitioner No. 2 in order to recognize the respondent as a tenant for which he did not agree. The learned Rent Controller has found the agreed rate of rent at Rs. 250/- per mensem since inception and the learned Sub-Judge although found the agreed rent to be at Rs. 250/- per mensem fixed it at Rs. 500/-p.m. catling it as reasonable and fair rent. The agreed rent at Rs. 250/- appears to be correct. Even the learned Sub-Judge did not disagree with this although, he enhanced it to Rs. 500/- p.m. As against the case of the respondent-tenant about the agreed rate of Rs. 250/- p.m., the case of the petitioners is wholly unstable, strategic, tricky and also irresponsible. As already pointed out, when the respondent tried to tender the agreed rent at Rs. 250/- p.m. by several required modes and tried to deposit in Court, petitioner No. 2 went to the extent of even denying the tenancy and the possession of the respondent over the schedule premises. It is true that the respondent was not actually inducted as a tenant in the premises by the petitioners. Admittedly one Pulla Reddy was the tenant who was running a lodge called 'Maurya Lodge' therein, the respondent and one Venkata Reddy purchased the furniture and other articles from the former tenant in the premises and continued the business under the name and style 'Sangeetha Lodge', when it was disclosed to petitioner No. 2, he allowed them to continue in the premises, but wanted the rent at Rs. 500/- p.m. with a deposit of Rs. 5000/-, since the respondent had spent some amounts towards the repairs and alterations in the premises, that was agreed to be deducted out of that amount and that is how by deducting Rs. 100/- p.m. out of the rent of Rs.350/- p.m. only Rs. 250/- were being received by petitioner No. 2 till the end of December, 1 1992, that the respondent agreed to vacate the premises after December, 1982 but, however, petitioner No. 2 wanted him to pay the rent at Rs. 1000/- p.m. from January, 1993 for which he did not agree but still, sent the rent at the same rate for which petitioner No. 2 was not agreeable. With such controversies having been put to test during enquiry, the learned Rent Controller has found that the agreed rent was only Rs. 250/-p.m. and out of Rs. 1495/- spent for repairs, Rs. 100/- p.m. were adjusted towards the subsequent rent and the balance of Rs? 745 / -was also adjusted by petitioner No. 2 for the months of January to March, 1993. He has rejected the case-of the respondent that he spent Rs. 15,000/- for repairing the premises. It is found that the petitioners could not prove that the rate of rent was either Rs. 350/ - p.m. or that it was Rs. 400/- p.m. muchless it was Rs. 500/- or Rs. 1000/- p.m. The testimony of P.W. 2 who is said to be a partner of the former tenant Pulla Reddy is found to be unreliable in regard to the rate of rent. In conclusion, the learned Rent Controller has stated that the rent agreed upon between the parties is only Rs. 250/- p. m. On going through the case records and the judgment of the learned Rent Controller, this Court is unable to withhold its appreciation regarding the manner in which the learned Rent Controller has dealt with the matter of rent in coming to such a conclusion. He has not spared any pains in examining the controversies between the parties, in assessing the evidence and circumstances with all meticulous details and expending all the judicial application of mind in doing that. Normally speaking such a finding recorded with such a standard could not have been improved or interfered with by any Court much less the appellate Court.
13. As against such a satisfactory and convening finding of the learned Rent Controller, the learned Sub Judge re-assessed the whole matter in regard to the rate of rent and did not disagree with the learned Rent Controller in regard to the rate of rent not being either at Rs. 400/- p.m. or at Rs. 500/-p.m. much less at Rs. 1000/- p.m. The relevant portions of the question of rate of rent with the conclusion of the learned Sub-Judge may be repeated as hereunder:--
"........ From a perusal of the plea of both sides and evidence, it discloses that Rs. 250/-was a netrent being paid the landlord and there is some other arrangement like repairs etc., and thus services were given set off towards portion of rent. Thus it can be said that apart from Rs. 250/- being paid towards monthly rent, there are some other considerations for landlords to accept Rs. 250/- only per month. Thus taking into consideration all the circumstances i.e. the age of the building, location and the nature of business, I feel it reasonable to fix Rs. 500/- p.m. as fair rent payable from January, 1983, This figure may not be a fair rent at present and it is far below the rents existing today. Any how I feel it is reasonable for the tenant to pay rent at Rs.500/- per month till he is evicted by process of law. The landlord is at liberty to file a calculation memo for arrears of rent and collect the same as per law. This is so far as fixation of fair rent is concerned......"
(Empahsis added) It is also clear from a reading of the relevant para leading to such a conclusion by the learned Sub-Judge that he fixed Rs.500/-p.m. as the reasonable and fair rent at the request of the learned Advocate for the petitioners, Throughout, he has styled such an amount of Rs.500/- p.m. as 'fair rent'. Mr. Narayana the learned Advocate for the respondent is justified in contending that the learned Sub-Judge fixed the fair rent and not the agreed rent between the parties. Mr. Sundar Rajan the learned Advocate for the petitioners with all his efforts was unable to repel such a contention as above. According to him, even the evidence discloses that since beginning the rent was Rs. 350/- p.m. which was agreed to be paid at Rs. 400/- p.m. at the intervention of somebody and consistently petitioner No. 2 had been demanding Rs. 1000/- p.m. by way of rent, having due regard to the location of the building, the normal rent which the building could have fetched at the relevant time and in the absence of a definite rate of rent having been struck between the parties to fix the rent at Rs. 1000/- p.m. According to him, the learned Sub-Judge is not right in fixing the rent at Rs. 500/- per mensem and he ought to have fixed it at Rs. 1000/- p.m. The whole contention appears to be misconceived. The fallacy in that is self-speaking. The petitioners have miserably failed to prove the agreed rent beyond and above Rs. 250/- per mensem. Admittedly, although petitioner No. 2 demanded Rs. 1000/- p.m. with some deposit, the respondent never agreed to pay it. Neither the pleadings nor the evidence in the case can admit with success that the agreed rate of rent could be either Rs.500/- or Rs. 1000/- per mensem. The whole breath and the sweat of the labour of the petitioners and the learned Sub-Judge was to produce a result of the reasonable or fair rent which the schedule premises could have fetched at the relevant time, but not the agreed rent. The learned Sub-Judge found it at Rs. 500/- per mensem whereas the petitioners want it at Rs. 1000/-per mensem. Both of them appear to be delving in a region beyond the scope of the petitions either under Section 8 or under Section 10 of the Act.
14. The manner is which the parties litigated the question of rent in the Courts below and the manner in which the learned Sub-Judge dealt with the question of rent with certain expressions compels this Court to probe into the real true legal parameters of the matter, scope and purpose of such a subject. It cannot be forgotten that we are dealing with two petitions filed under Ss. 8 and 10 respectively of the Act. The expression 'rent' used therein is being understood only for the purpose of deciding the controversies involved between the parties in such petitions. On the one side the tenant wanted to pay the rent at Rs. 250/- p.m. and on the other the landlords wanted it to be paid at a higher rate as detailed above. As already pointed out, the Courts decided it in their own way. But the law in the Act appears to be clear and certain about the same. The Preamble, Sections 1(1), 2(vi) and (ix), 3(6)(iii) and (iv), 3(8)(c)(i), 3(9), 4, 5, 6, 7(1)(a) and (b), 7(2), 8(1) and (2), 9, 10,(2)(i) and 11 of the Act and also Rule 5 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961 (hereinafter referred to as 'the Rules') appear to be all and only the provisions dealing with the 'rent' under the Act.
15. The expression 'rent' is not defined under the Act or the Rules. In general, the Act intends to consolidate and amend the law relating to the control of the rent in addition to the regulation of the leasing of building and prevention of unreasonable eviction of tenant. (Prominence stressed). Such a simple expression of 'rent' in the preamble has been repeated in several provisions viz., Sections 2(vi) and (ix), 6 and 8(1) of the Act and Rule 5 of the Rules. Because of the absence of a definition the expression 'rent' should be understood in the normal grammatical and the 'Deltus' (dictionary, encyclopedia, lexicon and thesaurus) sense and also the normal meaning imported within Section 105 of the Transfer of Property Act and, the Law of Property. Such a meaning in substance appears to be price, called the premium or re-compense, consideration for the contract in money, share, service or other thing to be tendered.
The qualified expressions of 'rent' under the Act are:
Fair rent -- Section 3(6)(iii) of the Act and Section 4(3) and (4) of the Act Reasonable rent -- Section 3(6)(iv) of the Act Monthly rent -- Section 3(9) of the Act Agreed rent -- Section 7(2)(a) of the Act Advance rent -- Section 7(1)(a) Pro viso of the Act Rent lawfully -- Sections 8(2), 9 of the payable Act Rent due -- Sections 10(2)(1), and 11 of the Act.
Although all the expressions supra under the Act mean only 'rent', it has a different implication in a particular context and for the purpose, particular provision, the right, liability and the reliefs. The question is not whether the provisions of Transfer of Property Act are applicable or not to a case under the Act. The question is whether we can borrow the meaning of the expressions under Chapter V of the Transfer of Property Act for similar expressions in the Act. At least as a policy of law and the doctrine or doctrines like pari materia unless the meaning in such expressions is not inconsistent with the object and purpose and the provisions of the Rent Control Act, the utility of such expressions may not be a bar. Significantly enough, none of the provisions either in the Act or the Rules of the Rent Control Act prohibit either the application of the provisions of Transfer of Property Act or the bar to utilise the meaning of the similar expressions therein to the provisions under the Act or the Rules. Therefore, the definition of 'rent' under Section 105 of the Transfer of Property Act (Chapter V) as the price to be called premium, the money share service or other thing to be so rendered cannot be totally ignored. Therefore, in the normal understanding of law, the rent should be meant in the same way as above under subject to the limitations of the expressions under the provisions of the Rent Control Act stated above. In view of the clear expressions as above viz., fair rent, reasonable rent, monthly rent, agreed rent, advance rent, rent lawfully payable and rent due, there is no scope for misunderstanding them or misapplying them to a particular situation. The fair rent cannot be other than the one determined under Section 4(1) of the Act and in accordance with sub-clauses (3) and (4) thereof. The fair rent so fixed has definite parameters within the provision. Sub-clauses (3) and (4) of Section 4 of the Act are self-explanatory in that regard and to repeat:
Section 4(3): In fixing the fair rent of residential buildings, the Controller may allow:--
(i) if the rate of rent or rental value referred to in sub-section (2) does not exceed twenty-five rupees per mensem, an increase not exceeding I2'/2 per cent, on such rate or rental value;
(ii) if the rate of rent or rental value exceeds twenty-five rupees per mensem but does not exceed fifty rupees per mensem, an increase not exceeding 183/4 per cent, on such rate or rental value;
(iii) if the rate of rent or rental value exceeds fifty rupees per mensem, an increase not exceeding 371/2 per cent, on such rate or rental value;
Provided that in the case of a residential building which has been constructed after the 5th April, 1944, the percentage of increase shall not exceed 371/2, 561/4 and 75 respectively.
(4) In fixing the fair rent of non-residential building, the Controller may allow -
(i) if the rate of rent or rental value referred to in sub-section (2) does not exceed fifty rupees per mensem an increase not exceeding 561/4 per cent, on such rate or rental value;
(ii) if the rate of rent or rental value exceeds fifty rupees per mensem, an increase not exceeding 75 per cent, on such rate or rental value;
Provided that in the case of a non-residential building which has been constructed after the 5th April 1944, the percentage of increase shall not exceed 75 and 150 respectively.
Normally speaking, the rent payable by a tenant would be the fair rent if any fixed for the building under the provisions of the Act supra and if no fair rent has been fixed, the rent payable would be such reasonable rent as the authorised officer may determine under Section 3(6)(iii) and (iv) of the Act." Such reasonable rent to be fixed by the authorised officer would be the authority under Section 2(ii) of the Act who is authorised by the Government under Section 3(1) of the Act. At any rate, the authorised officer under the provision can never be the Controller. It is also clear that it is the Rent Conroller who determines the fair rent under Section 4(1) of the Act whereas it is the authorised officer who determines the reasonable rent under the provision supra. The expression "agreed rent" used under Section 7(2)(a) and Section 8 of the Act cannot be misunderstood to be either fair rent or the reasonable rent within the meaning of the provisions stated above. It requires no elaboration of the meaning either in law or on fact that agreed rent cannot be more than what is agreed between the parties. The expression 'rent lawfully payable' used under Section 8 and Section 9(2) of the Act should be either the fair rent, reasonable rent or the agreed rent as the case may be and one cannot be misunderstood with the other. Similarly the expression "rent due" under Section 10(2) and Section 11 of the Act should be the lawfully payable rent which is due to be paid either as fair rent, reasonable rent or agreed rent.
16. In so far as agreed rent is concerned, the parties to the contract of lease will decide themselves. As already pointed out, the fair rent has to be determined by the Controller under Section 4(1)(3) and (4) of the Act on the application made either by the tenant or by the landlord. Section 4 of the Act is concerned only in determining the fair rent 'without saying anything regarding the consequences of such determination. Section 8(5) of the Act has nothing to do about the determination of the rent or the rent lawfully payable or the agreed rent, except that, it entitles the tenant to deposit the rent before such authority and in such manner as the case may be, if the landlord refused to receive she rent although the tenant tenders the rent in accordance with Section 8(2) to (4) of the Act. The tender or payment of rent by the tenant and the deposit should be the rent lawfully payable which may be the agreed rent, the fair rent or the reasonable rent as the case may be, to make it, the rent lawfully payable. The expression "the rent lawfully payable" under Section 9 of the Act cannot have any other meaning than what is stated above in the context of Section 8 of the Act. That provision entitles the tenant to deposit the rent lawfully payable to the landlord in respect of a building before the concerned authorily where the address of the landlord or the authorised agent is not known. In such an event, the Controller may pass an order on the application made by the person to withdraw the amount so deposited as the person entitled to the said amount so deposited.
17. The expression 'rent' under Section 10(2)(i) of the Act and the proviso is meant to be any kind of rent which is due or payable to the landlord by the tenant and if the Controller is satisfied that the tenant has not paid or tendered the rent due by him and that there was a wilful default in payment of rent, may pass an order of eviction. In other words, for the purpose of this provision, the Court is concerned with the question whether the landlord has committed wilful default in paying any kind of rent which was payable by the tenant to the landlord. To elaborate, such a rent could be, agreed rent, fair rent determined under Section 4 of the Act, reasonable rent, monthly rent, advanced rent and the rent lawfully payable, as the case may be. The determination of the rent for the purpose of this provision when the parties are at issue, should be underslood as the rent due or payable and not paid or tendered amounting to wilful default to suffer an order of eviction. There is no scope in the provision to think that the Tribunal is called upon to actually determine the fair rent or the reasonable rent to be paid by the tenant. The scope of Section 10 and the special provision as a ground for eviction also need not be emphasised that it is intended to pass an order of eviction on such a ground and not as an application under Section 4 to determine the fair rent.
18. The payment or deposit of rent during the pendency of the proceedings for eviction is the subject-matter of Section 11 of the Act. A tenant is debarred from contesting an application for eviction filed under Section 10 of the Act before the Controller or to prefer any appeal under Section 20 of the Act as against any order made by the Controller unless he has paid or deposited all arrears of rent due in respect of the building up to the date of payment and continues to pay or deposit the rent which may subsequently become due. The emphasis is on all arrears of rent due up to the date of payment. The failure to comply with such a mandate under Section 11(1) of the Act would put the tenant to the consequences of suffering an order of eviction by stopping all further proceedings under Section 11(4) of the Act unless the tenant shows sufficient cause to the contrary. The expression "all arrears of rent up to the date of payment" is so simple as to be determined for the purpose of the provision that it includes all kinds of rent stated above including the fair rent determined under Section 4 of the Act but at the same time it does not want that determination of the fair rent under Section 11 of the Act which is a totally different exercise and for a different purpose. The authorities who exercise powers under the different provisions stated above, some times may be different, exercising different powers and for different purposes. One cannot be mistaken for the other. The consequences in such provisions also appear to be different.
19. Apparently both the Rent Controller and the learned Sub Judge were strictly dealing with a petition under Section 10 of the Act to examine the ground of eviction on wilful default in payment of rent alleged against the respondent under sub-clause 2(i) and Proviso thereof and record a finding whether the tenant had not paid or tendered the rent due by him in respect of the building.
Whether it was fair rent, agreed rent or any other kind of rent, they were expected to examine and record a finding that such a rent was due and whether such a rent was paid or tendered and if not whether there was wilful default in tendering or paying the rent due on the part of the tenant. In the context, determination of the fair rent or any other kind of rent either under Section 4 or under any other provision of the Act was totally irrelevant and uncalled for in the proceedings. The main issue between the parties as to what was the agreed rent or rent payable by the respondent to the petitioner, and that was found to be Rs. 250/- per mensem by the learned Rent Controller and as already pointed out, the learned Sub-Judge did not disagree with such a finding, if not agreed with it. A simple reading of the portion of the judgment of the learned Sub-Judge which is extracted as above, would clearly indicate that he determined the fair rent within the meaning of Section 4 of the Act although he came to the conclusion that the rent which was being paid was Rs. 250/- per mensem. Mr. Sundar Rajan the learned Advocate for the petitioner made all possible efforts that the fair rent as contemplated under Section 4 of the Act was not determined by the learned Sub-Judge, but according to him it was the determination of the actual rent payable. According to him, since there was already a tenant in the demised premises by paying the rent at Rs. 250/- per mensem and since the Respondent was not inducted as a tenant by the petitioner with a stipulation of the same rate of rent and since the petitioner, all along demanded more rent and even up to Rs. 1000/- p.m. and since he was not agreeable to continue the respondent as a tenant in the premises unless he paid the rent demanded by him, the learned Sub-Judge was bound to determine such a rent and he has rightly done so. His grievance is that it ought to have been fixed at Rs. 1000/- p.m. and not at Rs. 500/-p.m. The contention emanates from a fallacy if not a fantasy. It may be that the petitioner wanted the rent to be paid more than Rs. 250/- p.m. and even up to Rs. 1000/- p.m. and admittedly it was not agreed by the respondent. Actually, .the respondent, conti-nued to pay Rs. 250/- p,m. which the petitioners accepted without any' demur till the last payment which was sent by Money Order and was refused. From the evidence and admissions, the rent payable and paid at Rs. 250/- p.m. was definitely fixed both by the learned Rent Controller and also the learned Sub Judge. There was no scope at all to think of any other rate of rent payable or paid both from the pleadings and from the evidence. The expressions of the learned Sub Judge are very clear as extracted supra that since the learned Advocate for the petitioner wanted the fair rent to be fixed or reasonable rent to be fixed, he determined it at Rs. 500/-p.m. which is also inconsistent with the case of the petitioner that he wanted rent to be paid at Rs. 1000/- p.m. It is a clear case wherein the learned Sub Judge has exercised the powers under Section 4 of the Act which was neither warranted nor invested with, in a petition under Section 10 of the Act. Thereby, he appears to have totally exercised a power which is not vested in him nor warranted to be exercised in the proceedings before him in the appeal and it may amount to exercising of a power without jurisdiction or the purpose, and at any rate, an exercise of power which may tantamount to abuse of power not vested in him. Whereas the learned Rent Controller dealt with the matter in accordance with law and procedure and within the powers vested in him, the learned Sub Judge as an appellate authority and an experienced Judicial Officer appears to have acted with great judicial impropriety or lack of understanding of the true implications of the law as detailed above which may expose him to the suspicion whether it was done with lack of knowledge, competence or with a deliberate intention to favour a party before the court and even to doubt the extraneous force if not with ulterior motive touching the integrity of the officer dealing with the matter. It is for the proper authority to examine this and think of the appropriate measure to avoid such a conduct on the part of such Officers. At any rate, this Court finds no reason to support the learned Sub Judge in this regard to any extent and on the other hand, expresses all the agreement with the learned Rent Controller in regard to the rent payable by the respondent for the 'purpose of Section 10(2)(i), and the proviso of the Act as aground for1 eviction. Let alone the reasonable rate of rent could be Rs. 1000/-
p.m. to be paid by the respondent, it could not have been Rs.500/- p.m. as decided by the , learned Sub Judge for the purpose of considering an application under the said provi-
sion. Even the reasons given by the learned Sub Judge that the reasonable rent ought to have been Rs. 500/- p.m. appears to be more speculative than based on any material. Therefore, for the purpose of finding out whether there was a default much less wilful default in paying the rent by the respondent it ought to have been reckoned at the rate of Rs. 250/- p.m. as was rightly pointed out by the learned Rent Controller.
20. Both the Courts below have held that there was no default much less wilful default on the part of respondent in paying the rent to the petitioners and the eviction on that ground could not be ordered. Mr. Narayana, the learned Advocate for the respondent has contended that the finding as such being concurrent, on the question of fact about the default in payment of rent, cannot be interfered with in a revision petition like this. Mr. Sunderrajan, the learned Advocate for the petitioner has counter-contended that although whether there is a default in payment of rent or not may be a question of fact, whether it would be a wilful default for the purpose of Section 10(2)(i) proviso of the Act would be either a mixed question of law and fact or a pure question of law. The counter contention appears to be sound. When the provision contemplates that default of payment of rent as a ground for eviction, in addition to the proviso to find out whether the default was wilful, it can never be a pure question of fact. In view of the non obstante clause in Section 10 of the Act that a tenant shall not be evicted except in accordance with the provisions of the said Section or Sections 12 and 13, it is for the landlord to prove the contrary by establishing that there has been failure on the part of the tenant either to pay or to tender the rent due within the stipulations of the provision and then in view of the proviso, it is for the Rent Controller to be satisfied that the tenant's default to pay or to tender the rent was wilful or not wilful so as to pass or not to pass an order of eviction on such a ground. The initial burden of proving the default in payment of rent should be necessarily on the landlord in the context of the provision and the purpose for which it is intended and in view of the intendinent of the law-makers as already pointed out, and thereafter it is for the Rent Controller to examine all the material before him whether produced by the landlord or tenant to be satisfied that either there was a wilful default or not to either pass an order of eviction or to reject the petition on such a ground. In the nature of the provision and also the proviso to Section 10(2)(i)of the Act, whether there is a default on the part of the tenant in paying or tendering the rent and whether it is wilful or not, depends upon the facts and circumstances of each case. Such facts and circumstances are to be examined in the light of the satisfaction to be derived by the Rent Controller in accordance with judicial exercise to assess the evidence and draw the inference as such. Although it may be easy to understand the grammatical meaning of "non-payment, or non-tendering the rent" whether it was wilful or otherwise would be a legal inference to be drawn on the established facts, the circumstances of the case and the legal interpretation of the wilful default. Mr. Sunder-rajan the learned counsel for the petitioner is right in pointing out that when wilful default is not defined or explained in the Act, the interpretation of the same by the precedents would lay the guidelines in such a situation based on the legal consequences of nonpayment of rent or not tendering of it in a particular situation. Although such a legal inference of wilful default may flow from the facts and circumstances established in the case, it must be held to be a pure question of law or at least a mixed question of law and fact to be examined and decided by the Courts. In that view of the matter, the contention of the learned Advocate for the petitioner deserves to be examined in the background of the legal forte on the basis of the facts and circumstances found in the case.
21. As already pointed out it is found by the courts below that all along the respondent was paying the rent at the rate of Rs. 250/-p.m. and petitioner No. 2 received it and even adjusted certain amounts towards the dues out of the amounts spent towards the repairs till the rent tendered by money order was refused by him and till the proposed deposit of the money by the respondent into court was resisted by the petitioners Mr. Sunder Rajan has attacked this finding for several reasons. According to him, there were number of defaults in tendering or paying the rent on the part of the respondent before the petition was filed and subsequent to that also till the order of eviction was passed. According to him, if that conduct is accepted as a default, the repetition of the defaults without any plausible explanation on his part should be put straight into the jacket of wilful default so as to enable the Rent Controller to pass an order of eviction under the said provision. Before adverting to this, certain dates may become relevant.
22. Petitioner No. 2 received Rs.250/-sent by money order for the month of April, 1983. The finding is that he has received the rent up to April, 1983 at the rate of Rs. 250/-p.m. The respondent deposited Rs. 750/ - with the Rent Controller in R.C. C12/83 for the months of May, June and July, 1983. The contention of the petitioners that the rents for January to March 1983 were not paid has been rejected, because the balance of Rs.745/- out of Rs. 1495/- spent by the respondent towards repairs was adjusted for the rent towards the months of January to March. Therefore, the learned Rent Controller has found and confirmed that there was no default in paying the rent till July, 1983. R.C.C. 12/83 was field on 11-8-1983. Therein the respondent proposed to deposit the rent for the months of May, June and July, 1983 amounting to Rs. 750/-. It was resisted with all might, by the petitioner No. 2 firstly on the ground of want of relationship of landlord and tenant and secondly on the ground of inadequate tender or payment of rent at the rate of Rs. 350/- p.m., 500/- p.m. and even at the rate of Rs. 1000/- p.m. regarding which the parties did not agree. There was also exchange of notices between the parties in this regard. Admittedly, the court did not pass any orders on the application of the respondent seeking permission to deposit the rent. In the nature of the counter filed by the petitioners in R.C.C. 12/83, the petitioners were not prepared to receive the rent either tendered or deposited by the respondent due to the grounds stated above. Although the petitioners did not recognize the respondent as their tenant in the demised premises and failed to receive the rent tendered or deposited by him, they chose to seek his eviction by filing R.C.C. 3/85, on 24-1-1985. Therein in para-5 the allegations of default in payment of rent were made. Such allegations appeared to have been made in the background of the manner in which the respondent came into possession of the demised premises, the proposal and counter proposal regarding the rate of rent which was not actually accepted, his attempt to send the rent at the rate of Rs. 250/- per month although it was not agreed by petitioner No. 2, his failure to pay the rent at the rate of Rs. 1000/ - p.m. demanded by petitioner No. 2 and Rs. 400/-p.m. soughit to be settled through the intervention of one Sidda Reddy, Proprietor of Triplex Lodge and the respondents failure to pay even that agreed rent and his attempt to some how make the petitioner No. 2 to agree to receive Rs. 250/-p.m. and his conduct as a whole being not bona fide and only to harass the petitioners. (This conduct is said to be wilful default) There is no merit in the allegation of the default in payment of rent by the respondent which could be made a ground for eviction under Section 10(2)(i) proviso of the Act. Even the evidence did not improve the basis for eviction on the ground of wilful default in payment of rent. Petitioner No. 2 in his testimony as P.W. 1 repeated what is alleged in the petition for eviction, made some allegations against the respondent regarding the demand of higher rent and refusal as above, admitted that he gave a telegram to res-
pondent wherein he mentioned that he is a trespasser in the premises and ultimately he admitted that because he did not agree to the rent sought to be paid or deposited by the respondent he did not ask him to deposit the rent into court and that he is a tenant of the building from January, 1983. Even then, there is no definite testimony as to how and since when the respondent became defaulter in payment of rent and was to be treated as a wilful defaulter. However, he stated that without prejudice to his rights he withdrew the money deposited by him for March or April, 1986. In fact with such indefinite and vague allegation of default in payment of rent as a ground for eviction, the petition ought to have been thrown out. A faint hearted creation of the ground of default in payment of rent was a fiction made incidently to resist the respondent from having any right as a tenant over the demised premises at any stage, but at the same time to evict him as he did not agree to pay more rent as demanded by petitioner No. 2 as detailed above. With such a strategic or tricky stand of the petitioners the respondent is sought to be evicted from the premises.
23. Mr. Sunderrajan, the learned Advocate for the petitioners by filing a memo dated 4-1-1994 has tried to demonstrate as to how the respondent conducted himself in depositing the rent into court. There may not be any need to record the memo in detail except to refer some relevant portions of the same to appreciate the contention of the learned Advocate. As already pointed out Rs. 750/-covering three months' rent for May, June and July, 1993 was deposited on 16-8-1993. There are as many as 18 deposits or payments of rent by the respondent up to December, 1985 before the eviction petition was filed. The defaults pointed out are for the months of Oct. 1983 and June, 1984. The defaults after filing the eviction are also pointed out by Mr. Sundarrajan, the leanred counsel for the petitioners. They are defaults for the months of March 1985, June 1985, January 1986, March 1986, June 1986, February 1987, June 1987, August 1987, March and April 1988, August 1988, October 1988, December 1988, February 1989, April 1989, Sept. 1989, July 1990, October 1990, December 1990, February, March, May, June, August, September, October and December, 1991, January and February 1992, April, June and July 1992, January to August, October and Nov. 1993. It is true that there are number of defaults in depositing the rent subsequent to filing of the petition. It must be concluded at this stage that there can never be default in paying the rent till the date of filing the petition. The question of wilful default, therefore, can never arise for consideration. The findings of the court below on that account can never be wrong. Therefore, the question is whether the subsequent defaults as detailed supra could be based as a ground for eviction under Section 10(2) proviso in the background of the legal implications flowing therefrom.
24. Strictly speaking the expression 'default' much less 'wilful default' does not find a place in Section 10(2)(i) of the Act as a ground for eviction. It is the meaning of these words which is understood as a wilful default in payment of rent as the ground. A tenant shall not be evicted from a premises as a rule in view of the non obstante clause in Section 10(1) of the Act. But a landlord who seeks to evict his tenant should apply to the Rent Controller seeking a direction for eviction alleging that the tenant has not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. Therefore, the Controller after giving the tenant a reasonable opportunity of showing cause against the application if satisfied will issue such a direction provided that "if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, give the tenant a reasonable time not exceeding 15 days to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected." So what the law intends is that if the tenant has not paid or tendered the rent due, if that amounts to default, and unless such default was not wilful, an application for eviction of the tenant on such a ground of default in payment of rent will be rejected, however, on payment of rent due up to the date of payment within some time so fixed not exceeding 15 days from the date of the order. The whole expression in Section 10(2)(i) and proviso is in the simple past tense (page 109 of the English Grammer and Composition of Wren & Martin 101 Edn.). There is not even a slight indication that such an expression therein could be read or understood as either simple present tense, present continuous tense, past continuous tense or past present continuous future tense (Chapter XIV of Wren and Martin supra). One thing is understandable that in order to constitute a default or wilful default within the meaning of the provision, there must be clear allegation or plea in the application for eviction of the landlord to mean, that by the time the application was filed, the default in payment of rent had already occurred. A landlord cannot be expected to say that a tenant would commit future default also after filing of the petition, except to describe the tenant as a chronic defaulter or a hapitual defaulter. Even the Controller cannot anticipate as to what would be the conduct of the tenant after filing of the petition. The law while protecting a tenant against eviction from the premises, as an absolute protection has provided an in built liability on him or her to tender or pay the rent regularly and up-to-date and in accordance with law or otherwise, to lose the legal protection therein. That should be up to the date of filing of the application for eviction under the provisions of Section 10(2)(i). The law did not stop there. It has imposed further obligation on the part of the tenant where an application for eviction has been made under Section 10 to pay to the landlord or deposit with the Controller or the appellate authority as the case may be, all arrears of rent due in respect of the building, up to the date of payment or deposit and to continue to pay or deposit any rent which may subsequently become due in respect of the building until the termination of the proceedings before the Rent Controler or the appellate authority, as the case may be, or otherwise, he will not be allowed to contest the eviction proceedings or the appeal proceedings. Such an obligation is incorporated under Section 11(1) of the Act.
In this provision also, the expressions 'default 'or 'wilful default' are not explained. But while imposing the obligation to pay or to continue to pay the rent by the tenant throughout till the termination of the proceedings, the provision has cautioned the tenant to suffer a summery order of eviction on failure to fulfil the obligation, however, subject to the other conditions under Section 11 (2) to (4) of the Act. In substance, the deposit of rent under sub-section (1) shall be made within the time and in the manner prescribed, where there is dispute as to the amount of rent to be paid or deposited, the Controller will hold an enquiry and decide it and if the tenant fails to pay or deposit the rent, so determined will stop further proceedings and make an order directing the tenant to put the landlord in possession of the building, unless the tenant shows sufficient cause to the contrary. These are the further protections provided to the tenant against eviction notwithstanding the non-payment of rent even after the enquiry during the eviction proceedings and the appeal proceedings. Section 11 of the Act is a clear provision imposing an obligation on the tenant during the pendency of the eviction proceedings and the appeal proceedings regulating the procedure and the consequences of the non-compliance of such an obligation. In other words Section I0(2)(i) and Section 11(1) of the Act are clearly intended for different purposes and different consequences, the former being the obligation to pay or tender the rent till the application for eviction is filed, whereas the latter, for such an obligation commencing from the time of filing the eviction petition till the proceedings are concluded. To understand the two provisions otherwise should naturally produce absurd results inconsistent with the object and purpose of the Act under the preamble of the Act and the non obstante clause in Section 10(1) of the Act.
25. In the content of Sections 10 and 11 of the Act, perhaps, no interpretation is possible that the future defaults in paying or tendering the rent by the tenant after filing the eviction petition can be taken into consideration or made a ground to pass an order of eviction under Section 10(2)(i) of the Act. But Mr. Sunder Rajan, the learned Advocate for the landlords has made bold to put up such a construction in law and tried to support himself with a pronouncement of our High Court in D.L. Sathyanaranana v. Kalasantha Radha Krishnaiah (1994) 1 APLJ 328. Therein in the penultimate para No. 6, he has depended upon the following observations of the Court:
".......... When this is the factual situation, when the petitioner has failed to pay the rents for a long period of nearly two years from July, 1986 to June, 1988 and deposited the rent before the Rent Controller in June, 1988, both the Courts were perfectly justified in finding that the petitioner has committed wilful default in payment of rents. They were further justified in taking note of the subsequent events of the petitioner committing default in payment of rents during the pendency of the rent control proceedings....."
The question is whether these observations would really mean that the subsequent defaults in payment of rent by the tenant could be made a basis to pass an order of eviction under Section 10(2)(i) of the Act and whether in the pronouncement supra can it be taken as any law declared in that regard to make it a binding or supporting precedent? the answer should be necessarily in the negative. It is never stated therein as could be made out, that such future defaults could be made a basis for eviction, but what is stated therein is that the courts were justified in taking into consideration of the subsequent defaults to hold that the tenant had committed wilful default. If we read the entire judgment, it is very clear that since the default in payment of rent within the meaning of Section 10(2)(i) of the Act was established as a matter of fact and law, the subsequent event of defaults by the tenant were held to be justified to be taken note of to call the tenant a wilful defaulter. It is one thing to say that the subsequent defaults can be made a basis to pass an order of eviction and another thing to say that such a conduct could be taken note of, to call-the tenant a wilful defaulter to suffer an order of eviction under Section 10(2)(i) of the Act. If the former is absent the latter can never come into play at all. If the former is established, the latter may play some role to confirm that the tenant exhibits himself a conduct of wilful default. Secondly, except as a passing observation as above, that the courts were justified in taking note of the subsequent events of the petitioner committing default in payment of rent during the pendency of the rent control proceedings as a decision to examine the past conduct of the tenant in committing the default in payment of rent till the date of filing of the eviction petition, no law as such is dealt with on the question or is declared. The law of precedents has clear pararnetres. In order that a law may be declared as a precedent, such a question should be raised in the proceedings considered, interpreted and supported by reasons, authorities etc., or otherwise, there can never be a ratio decidendt in law to make it a binding law declared by a court as a part of judicial law making process. Mr. Sunder-rajan, the learned counsel is not for a moment postulating such a rule of precedent while depending upon the pronouncement supra. This court is of the considered view that notwithstanding the pronouncement supra, no law can be taken to have been declared or can be declared that the failure to pay or tender the rent by the tenant after filing of the' eviction petition under Section 10(2)(i) of the Act can be made a basis for passing an order of eviction as against the tenant as a ground for eviction or otherwise, it would be repugnant to Section 10(1) of the Act.
26. Assuming for argument's sake that the petitioners had established the ground of eviction on default in payment of rent as against the respondent on facts and in law by the time the eviction petition was filed, the question is whether the conduct of the respondent in committing number of defaults after filing the petition in payment of rent would make him a wilful defaulter to suffer an order of eviction as such a subsequent event could be taken note of to pass an order of eviction. It is true that the respondent is not regular in depositing the rents during the pendency of the proceedings as detailed above. There are umpteen number of defaults for a long time. It has spread from the date of eviction petition to the date of order of eviction and till it was put into execution. Mr. Sunderrajan, the learned Advocate has even pointed out that the arrears of rent to be paid by the tenant extended to thousands of rupees viz., Rs.66,000/- from January, 1985 to December, 1993 calculated at the rate of Rs. 500/- p.m. and even when he deposited Rs.59,250/- during the pendency of the execution petition, he was still due to pay Rs.6,750/- as on 1-1-1994. Therefore, the learned advocate calls the respondent a chronic defaulter, a habitual non-payer of rent and a recalcitrant tenant who has no respect for the obligation imposed in law on him in paying the rent till the proceedings were terminated. Mr. Narayana, the learned advocate for the tenant has tried to repeal this contention as a total falacious one projected from a deliberate conduct on the part of the petitioners by blowing hot and cold, by preventing the respondent from paying or tendering the rent throughout and by affronting strategy and trick to trap him in the net of the legal jargon to style him a bad tenant, recalcitrant in conduct and unrepentent in the mood in order to suffer the order of eviction under Section 10(2)(i) of the Act. According to him, it has been a devise throughout on the part of the petitioners to drive out the respondent from the premises by hook or crook. It is true that such expressions may appear to be little harsh. But this court after examining all the facts and circumstances of the case is constrained not to treat such a contention lightly on the other hand is persuaded to accept it, justifiably both in law and on facts.
27. The expressions "default" and "wilful" to become a compound form as "wilful default" are not defined much less explained in the Act. S. I0(2)(i) of the Act does not even use any of these expressions. It only makes non-payment or tender of the rent as required a ground for eviction. The proviso to the provision relieves the tenant from the result of non-payment of rent if the Rent Controller is satisfied that the failure to pay or tender the rent is not wilful. Thus it is in the proviso, the expression "wilful" is used. The provision and the proviso if read together mean that a tenant will suffer the order of eviction if he wilfully fails to pay or tender the rent to the landlord as required. Perhaps, such a meaning is pressed into the expression' wilful default'.
28. What is 'wilful default' within the meaning of Section 10(2)(i) of the Act? When law makers did not define or explain it in the Act, as and when the Occasion arose in each case, the courts have explained it depending upon the facts and circumstances of each case thereby declaring the law to make it precedent. Such precedents while laying down the general principles have only provided illustrations as to when the non-payment or tender of the rent by the tenant to the landlord would or would not constitute wilful default as a ground for eviction. So, they can never be taken as either exhaustive or to serve the need for all the cases or for all the time to come.
29. The true and the real implications of the concept of wilful default have been set at rest by the apex court of the country in more than one authoritative pronouncements after a deep probe into the same, vide S. Sundaram Pillal v. V. R. Pattabiraman, AIR 1985 SC 582, Rakapalli Rajarama Gopalarao v. Nara-gani Govinda Sehararao, AIR 1989 SC 2185. Equally so, our own High Court has set at naught the same in several precedents until the day vide, Patthan Khan v. Syed Pasha, (1975) 2 APLJ (HC) 318, K. Nagappav. T.D. Krishnasa, AIR 1971 Andh Pra 243, Chakka Subba Rao v. Nalisetty Venkamma, (1969) 2 Andh WR 446 and P. Rajkumar v. N. Krishna, (1994) 3 Andh LT 597. After a thorough deliberation of the concept and the meaning of the expressions 'wilful default' in paras 21 to 24 in S. Sundaram's case (AIR 1985 SC 582) (supra), the Supreme Court summed up the law and declared it:
"......Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for in-stance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
Such a principle was laid down with reference to such expressions used not only in Tamil Nadu Buildings Lease and Rent Control Act 118/60 but also such expression in similar enactments. The principle supra has been bodily lifted and repeated in Rokapalli's case (AIR 1989 SC 2185)(supra) while dealing with the provision in question namely Section I0(2)(i) proviso of the Act (A.P. Act). In S. Sundaram's case (supra) the explanation for the default in paying the rent by the tenant was that he was ill and that he was not able to pay to rent. In Rakapalli's case (supra), the tenant failed to pay or tender the rent for almost six months and it was considered in the context of his bona fide belief that he was entitled to purchase the property under the oral agreement dated 14-10-1977 with the landlord and not because of his having no desire to pay the rent to the landlord. In that context, the failure to pay the rent to become wilful default or otherwise was explained, examined and held in the negative. Particularly in the latter case, even where the tenant did not pay the rent setting up an oral agreement of sale for such a long time, was accepted to be a proper explanation and was relieved of the consequences of the eviction on the ground of wilful default. In Patthan Khan's case (1975 (2) APLJ (HC) 318) (supra), the question involved was about the irregular payment of rent by the tenant to the landlord on the ground of certain terms inferred by the tenant as to which of the buildings the landlord should adjust the rent was negatived and the conduct of the tenant regarding the non-payment of rent was held to be wilful default. In Mallikarjuna Rao v. Godavarthi Seshamma, AIR 1971 Andh Pra 298, the question was elaborately dealt with and the meaning of 'wilful default' was ex-. plained thus:
".....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 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 hand 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."
In Chakka Subbarao's case (1969 (2) Andh WR 446) (supra), the term 'wilful default' was held to mean "deliberate or intentional nonpayment or non-payment due to gross indifference". The word 'wilful' as used in contra distinction to the words 'accidental' or 'in-advertant'. It does not imply any element of moral turpitude, but it eliminates an honest error of judgment. Following the two rulings Mallampalli Matlikarjuna Rao's case (supra) and Chakka Subbarao's case (supra) with approval, in P. Rajkumar's case (1994 (3) Andh LT 597)(supra), the meaning was further recorded thus:
".......Perhaps, this provision may be synonym to rule against forfeiture contemplated under Section 114 of the Transfer of Property Act. What is wilful default depends upon the facts and circumstances of each case. The Rent Controller appears to have gone by a logical consequence of non-payment of rent in the absence of explanation as a wilful default. In the considered opinion of this Court, the Court is bound to give a finding that the default in payment of rent is wilful or in the converse and should dismiss the petition for eviction on such a ground by giving a different finding that the default either to pay or tender the rent by the tenant, was not wilful."
30. Now, with the guidance of the settled law in the precedents supra and by reading Section 10(2)(i) and proviso and by a proper understanding of the matter both in the background of the preamble of the Act and also the Preamble of the Constitution of India (Justice, social, economic and political), the concept built in the expressions 'wilful default' can be understood in its true letter and spirit. As already pointed out, wilful default is neither defined in the Act nor can be defined in law. An attempt to define it may stultify and distort the meaning and make it unadop-table to factual situations of human conduct. As a compound expression dictionaries cannot provide the meaning, encyclopedia has no space for it law lexicons only attempt to explain and thesaurus may say few synonyms and antonyms. Only the combination of all such treatises (deltus) may compress the whole lot of its product into some understandable illustrative synopsis if not a capsule to easy consumption. Incomprehensible as the expressions appear, they inescapably provide the meaning in the facts and circumstances of each case. The tests laid down in the precedents of the Supreme Court and of our own High Court should be necessarily in the back-ground of the factual situations of each case. Even the same test may not serve a particular individual or a case or the circumstance to know whether the default of payment or tender of rent by a tenant is wilful or not. Added with the socialisation of law emboldened in the preamble of the constitution, the meaning in such expressions cannot be a static, wooden, stable or unadoptable to the individual and the case. What is true to one individual may not be applicable to the other having due regard to the economic, social, environmental, educational, cultural and such considerations within which the individual is born, brought up and pushed into human activity. What is applicable to rural areas may not be applicable to urban areas. What is applicable to educated persons may not be equally applicable to uneducated if not to illiterate persons. Even the different professional situations may also alter the conduct and the consequences. The communication, the opportunity, preparation and the resistance by the other side or the adversary are also the relevant factors. The illustrations in respect of the above expressions may clarify the situation. The understanding of the legal obligation to pay the rent and the consequences of non-payment, may be totally different between a true rural folk and an urban educated white collared person. Even to approach for legal-aid through a legal advisor may not be even known to many such persons in the rural areas or illiterate and ignorant persons in the urban area to pay or tender the rent in the manner prescribed under Sections 8 and 9 of the Act. It cannot be forgotten that even now most of the people particularly in rural areas live in confidence and suffer the consequences. The economic considerations cannot be overlooked or need not be over-emphasised. The capacity to pay the rent regularly may depend upon the social and family obligations for an honest and sincere human-being. That should differ for different classes in the society namely, poor, lower, middle and upper classes. What is true to a wood cutter and a stone cutter petty trader, street hawker or a school teacher may not be the same for a diamond cutter a business tycoon, a bureaucrat and a commercial baboon. There may be any number of instances where the genuine attempts of the tenants to pay or tender the rent may be prevented, avoided and even suppressed or depressed by a systematic scheme by expert landlords either directly or indirectly through their henchmen. In how many instances the payment of rent is acknowledged in writing either by issuing receipts or otherwise even among educated and urbans? Utter poverty, illness, litigations and social obligations may be the added factors to prevent a tenant from paying the rent regularly in spite of his best intentions, bona fides and preparations to pay. Such illustrations are umpteen and plenty and are incapable of finding a record in black and white having due regard to the varied human conduct and fabulations. That is how. the law-makers have left it to the wisdom of the courts or the Tribunals as the case may be, to be satisfied or not, in a given situation whether the non-payment or tender of rent by a tenant would constitute wilful default or not. That is how, the Supreme Court in the two precedents supra has pithily put the meaning in clear words to constitute wilful default.
31. Now judged the true concept of wilful default in the background of all the legal expressions supra, the following tests may be applied for the facts and circumstances of each case:
1) The social and economic status of the tenant and the landlord.
2) The capacity of the tenant to pay the rent at a given time.
3) The bona fide conduct of the tenant in making attempts to pay or tender the rent to the landlord.
4) The conditions of the tenant at a particular situation lie family obligations, social obligations, illness, festivals etc.
5) The conduct of the landlord in relation to the tenant regarding payment of rent.
6) The totality of the circumstances in a particular case to satisfy the conscience of the court that the tenant was guilty or otherwise in regard to payment or tender of rent.
7) Any other useful circumstances in a given case in support of the above tests.
There are only illustrative and not exhaustive.
32. Now we are applying the above tests to the facts and circumstances of the present case. Economically both the sides --landlord and the tenant --appear to be not much different. The former is a professional whereas the latter is a businessman. The former appear to be urban whereas the latter appear to be a rural. Educationally and in the legal learning, the former (petitioner 2-Advocate) holds a superior position than the latter. There is no material to compare them on a social basis. The respondent was always on the defensive whereas the petitioners were on the offence front in view of the fact that the latter entered into the premises through a former tenant Mr. Pulla Reddy and was continuing at sufferance at varied terms not very advantageous to the latter. The respondent was all along interested in paying or tendering the rent at the rate of Rs. 250/- p.m. till he filed the petition under Section 8 of the Act and till the petitioners filed the petition under Section 10(2) of the Act. It was petitioner No. 2 who was all along refusing to receive the rent at the rate of Rs. 250/- p.m. demanding more and more ranging from Rs. 300/- to Rs.1000/- and an advance of Rs. 5000/-. Furthermore a strategic method was adopted by petitioner No. 2 in neither conceding nor totally denying the relation-ship of landlord and tenant between the petitioners and the respondent. The fingers were always kept at cross till the eviction petition was filed. Petitioner No. 2 refused the rent sent by money order inasmuch as the petitioners went to the extent of resisting the genuine and bona fide attempt on the part of respondent in depositing the rent by filing the petition under Section 8 of the Act. It is significant to note that till the order of eviction was passed no permission was given to him to deposit the rent under Section 8 of the Act. Throughout the petitioners uptil now, canvassed for the rent being Rs. 1000/-p.m. and not at any rate of Rs. 250/- p.m. Thereby the petitioners put the whole matter in uncertainty in a fluid state and kept the respondent at bay in regard to his payment of rent. What all the deposits he made into court were his own and only to show his bona fides. Strictly speaking if these circumstances were accepted as sufficient grounds to hold that there was no wilful default on the part of the respondent in paying our tendering the rent, the Rent Controller or the appellate court was bound to pass an order under Section 10(2)(i) proviso of the Act that all the arrears of rent should be paid not later than 15 days from the date of the order as per the mandate in the statute. Since the rate of rent was very much in dispute between the parties, if it had been determined even assuming that there was an application under Section 11(3) of the Act, if after determination of such amount of rent and the arrears, the respondent would have had the opportunity to pay such arrears of rent as determined and even where he had failed to pay or deposit the same, he was entitled to show sufficient cause to the contrary as to why all further proceedings should not be stopped and an order directing him to put the petitioners in possession of the building should not be passed by the Rent Controller under Section 11(4) of the Act. In such a situation, certain defaults pointed out by Mr. Sunder Rajan as against the respondent regarding the payment of rent during the pendency of the proceedings in this case can never operate as a ground for passing an order of eviction under Section 10(2)(i) proviso of the Act by giving a finding that there is wilful default. On the other hand, it is a fit case wherein, the Rent Controller, the appellate Court or this Court can exercise the discretion under the proviso of Section 10(2)(i) of the Act to reject the eviction petition on such ground having been fully satisfied that there was no default. The respondent can never be termed as a wilful defaulter at any cost much less at any rate a recalcitrant tenant, whereas all such adjectives should be put in the converse as against the landlords. Therefore, judging the matter in any angle, it was never a case for eviction of the respondent under Section 10(2)(i) proviso of the Act and to that extent, there is no reason to interfere with the findings of the Rent Controller and the appellate Court.
33. As rightly pointed out by Mr. Sunder Rajan the learned Advocate for the petitioners, there is concurrent finding of the learned Rent Controller and the learned Sub Judge on the question of sub-lease and the use of the building for the purpose other than the one agreed upon between the parties and in regard to the question of damage and waste to the demised premises as alleged by the petitioners. Therefore, he vehemently contends that this court in its revisional jurisdiction would not be justified in interfering with the same. According to him both are the questions of fact which warrant no re-assessment or re-examination. In support of this contention, he has depended upon M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar . Mr. Narayan, the learned Advocate for the respondent with equal vehemence conteds that in the first place, such questions in this case are not questions of fact much less mixed questions of fact and law and strictly speaking they are pure questions of law having due regard to the facts and circumstances of the case. Furthermore, he contends that such a rule is not unexceptionable even from the ruling of the Supreme Court and also a ruling of this Court depended upon by him viz. Mahboob Bi v. Alvala Lachmiah, (1962) 2 Andh WR 148. The latter contention has all the force. The law appears to be that the statutory revision under Section 22 of the Act is a jurisdiction specially vested in the High Court in order to examine the record relating to any order passed or the proceedings taken under the Act by the Rent Controller in execution under Section 15 or by the appellate authority on appeal under Section 20 of the Act, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and may pass such order thereto as it thinks fit. Patently, it is distinguishable from Section 115 of-C.P.C. as a revisional power. The limitations and de-limitations of Section 115, of C.P.C. as enumerated therein in (a) to (c) and in sub-clause (2), are not to be found in Section 22 of the Act. It is true that white dealing with revisional powers of the High Court in Section 22 and the revisional powers of the High Court in Tamil Nadu Buildings (Lease and Rent Control) Act, I960, the Supreme Court in Raja Lakshmi's case, held that where there is concurrent finding based on evidence that the landlord did not bona fide require the premises for his own use and occupation, it cannot be touched by the 'High Court exercising jurisdiction under the said provision. It was stated that in such a case, merely to hold that a question is a mixed question of law and fact is not sufficient to warrant the exercise of revisional power. While' referring to several precedents on this question, it was observed therein as hereunder (attp. 1255 of AIR):
"..... We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. "A" concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960".
Patently, such a rule was laid on the facts of the case therein and consequently not to lay down a general rule as such for all cases and to make it clear that such a rule becomes exceptionable where it is shown that there-was a taint of such unreasonableness resulting in a miscarriage of justice. That is why in Mahboob's case (supra) it was held that:
"..... If the principles of natural justice and fairplay have been found to be violated, interference by the High Court would certainly be within the province of the revisional powers conferred by Section 22,of the A.P. Buildings Control Act."
Therefore, in a given case, the High Court would with all concern and caution examine I the facts and circumstances to warrant interference in its revisional power under Section 22 of the Act to avoid miscarriage of justice and to undo unjustice. If the postulation as presented by Mr. Sunder Rajan is accepted, I the injustice if any perpetrated by the authorities under the Act, either on facts or in law, would be indirectly supported by the High Court by merely applying a mathematical formula not to interfere with the concurrent findings of the authorities. However, we may hasten to add that just because such powers are conferred to interfere under Section 22 of the Act, it will not be done as a matter of routine.
34. So, now we are to examine whether this court can interfere with such a concurrent findings. The first of it being the alleged sublease and the use of the building for the purpose other than the one for which the lease was agreed upon. The learned Rent Controller has dealt with this question in para 17 of his judgment. According to him, the evidence of petitioner No. 2 as P.W. 1 that one south eastern room was let out to one Ramamurty to store tyres and another room, was let out to some other for storing goods by the respondent without his permission is not attacked specifically by the respondent except baldly denying the same and since the res-
pondent as R.W. 1 did not deny the same in his evidence, it has to be concluded that the respondent sub-let the premises without the permission of the landlord and used it for a purpose other than for which it was let out. The learned Sub Judge appears to have dealt with this question in para 17 of his judgment which is nothing but a reference to what the learned Rent Controller has said and agreeing with such a finding without even considering the correctness or otherwise of such discussions and the findings. Perhaps, he thought it a privilege as an appellate authority not to give any reasons while agreeing with the findings. We are thus left with only the reasoning and the findings of the learned Rent Controller for the purpose of examining the correctness or otherwise of the same both in law and on facts. On the face of it, para 17 of the judgment of the learned Rent Controller warranted perusal of the entire records concerning the question. It appears that the rule of non-traverse of pleadings under Order VIII, Rule 3 of C.P.C. and rule of adverse inference under Section 114 of the Evidence Act appears to have been adopted by the learned Rent Controller. Although not stated in so many words it is totally against the pleadings and the evidence in this case. In para-7 of the petition, it is alleged that the respondent also sub-let one room (previous office room) to one driver for a considerable period and the other north western room for storing goods and the room lying to the west of the hall on the northern side, for storing tyres (o another, and that he is also liable to be evicted as he has used the building for the purposes other than the ones agreed upon. That is all the pleadings in regard to such a ground. No particulars as required under Order VI, Rule4 of CiP.C. are provided. Subletting or mis-use or non-user of the premises for the purpose for-which it was let out, requires lot of facts and particulars, so that the tenant may know as to how to answer it at appropriate stages. On the face of it, such an allegation is very vague in para 7 of the petition. The name of the person to whom there was sub-letting, the actual period for which it was sub-let, the terms under which any portion or portions is/are sub-let are totally silent. Therefore, in the counter at para 7, such allegations are generally and specifically denied. No specific denial was necessary in the circumstances. How the rule of non-traverse could be applied in such a case is not reasoned by the learned Rent Controller. In the context of the discussion, the stress appears to be more in the non-traverse in the evidence to draw adverse inference. The testimony of petitioner No. 2 in this regard is to the effect that one south eastern room is let out to one Ramamurty to store tyres and another room was let out to some others for storing goods by the respondent without his permission. Beyond this, there is nothing in the evidence in support of such vague statement. For the first time, the name of one Ramamurty occurred in his testimony. That Ramamurty was not examined as a witness. The respondent denied it in his testimony in clear terms in the examination-in-chief. So, a general and vague allegation of the subtenancy or mis-user of the premises is generally denied. It is true that petitioner No. 2 was not cross-examined regarding the said statement. Similar is the case that not even one question was put to the respondent in his cross-examination in this regard. Therefore, both of them stood in the same situation in regard to a serious question of sub-letting or mis-user of the premises. Then, how the learned Rent Controller could draw inferences against the respondent is ununder-standable. Such inferences were applicable to both of them. Because the initial burden of proving such allegations was upon the landlords. It was for them to specifically allege in the petition and to testify before the court. Then the burden would have shifted on to the respondent to demonstrate to the contra. On the face of it, the interested and uncorroborated testimony of petitioner No. 2 in regard to such serious allegations were insufficient and strictly speaking did not call for any denial on the part of the respondent. If the rule of evidence (burden of proof) under Sections 101 to 105 of the Evidence Act is applied, the petitioners were bound to fail in regard to such allegations. That being the facts and the law in the case, the expressions of the learned Rent Controller as above and the inference against the respondent and the finding against him are totally unsupportable. The learned Sub Judge played it safe by agreeing to spare himself all the pains to probe into the matter. Demonstrably both of them were wrong and could never stand to support. What could be better miscarriage of justice than this to examine such illegal findings in revision?
35. Even assuming for argument sake, that the entire evidence produced by the petitioners which is said to be not seriously denied by the respondent is accepted in addition to the allegations in the petition about the sub-letting and mis-user of the premises, the question is whether the law will bring him such a ground to pass an order of eviction. Patently, the law on the question is not at all considered or decided by both the Courts below. Their approach appears to be presumptuous. The matter thus requires a serious examination. Section 10(2)(ii)(a) and (b) of the Act reads;
"10. Eviction of tenants: (1) xxx xxx xxx (2) xxx xxx xxx xxx (ii) that the tenant has, in the Andhra Area, after the 23rd October, 1945 and in the Telangana area after the commencement of the Hyderabad Houses Rent Control Order of 1353 Fasli, without the written consent of the landlord (a) transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so, or (b) used the building for a purpose other than that for which it was leased, or...."
Unless with the written consent of the landlord if a tenant transfers his right under the lease or sub-lets the premises and uses the building for the purpose ther than that for which it was leased, he will be liable to be evicted. This provision is practically in pari materia with Section 108(j)of the Transfer of Property Act which imposes a liability on the lessee in regard to the lease. The expression 'sub-lease' like 'lease' goes without any definition in the Act, There is no specific bar in any of the provisions of the Act to operate the relevant provisions of the Transfer of Property Act which are not repugnant or inconsistent with the provisions of the Act or the object and purpose of the Act. When similar expressions are used as in Chapter V of the Transfer of Property Act in Section 10 of the Act unless pari materia expressions are understood in such a context, the Courts will be unable to decide the issues and rendci fun justice. We have already dealt with the definition of lease supra under Section 105 of the Transfer of Property Act. In M/s. Heerachand Poonamchand HUF represented by Kartha Chainchand Chaliani v. M/s. Kanchan Cycle Trading Co., by Shankerlal Agarwal, (1990) I Andh LT 315 this Court borrowed the meaning of rent for the purpose of the Act from Section 105 of the Transfer of Property Act. In G. Manikyamma (died) by L.Rs. v. T. Seetharamaiah, (1988) 2 Andh LT 333 this Court while dealing with applicability of C. P. C. held that the provisions of the Code of Civil Procedure can be made applicable in an eviction petition under the Act, so far they are not inconsistent with the provisions of the Rent Control Act. In Soni alias Bhuthulasi v, Kunda Nageswara Rao, (1991) 3 Andh LT 200 the law was declared that the Code of Civil Procedure does apply in a proceeding under the Act provided there was no adequate provision in the Act or Rules and provided it does not offend the scheme and purpose of the Act. Reliance was placed on Harikishan Singh v. B. Narayana, (1969) 2 AP LJ 290 in support of such a view. The question is not left res intcgra in view of the approval of such a view by the Full Bench of this Court in P. N. Rao v. K. Radha-krishnamacharyulu, . So, with the same analogy, particularly when Chapter V of the Transfer of Property Act deals with leases, it is proper and expedient to borrow the principles there from for the proceedings under the Act unless such provisions are repugnant to the object and purpose of the Act and when there is no adquate provision made in the Act to meet the requirement arising within such similar expressions to achieve the real purpose and the objectives of the Act. Added to this, there is neither specific bar nor a bar to be drawn with necessary implications from any of the provisions of the Act that the provisions of the Transfer of Property Act relating to leases cannot be made applicable to the proceedings under the Act. This Court is thus of the considered view that there may not be any, allergy in law under the Act to take support from the expressions in Chapter V of the Transfer of Property Act subject to the limitations 'stated above. Although sub-letting or sub-lease is the subject matter of the ground of eviction, legally it amounts to transfer of the right under the lease by the tenant even according to the opening expressions made in Section 10(2)(ii)(a) of the Act. Technically speaking sub-lease would be an assignment of the right of tenancy by the tenant or lessee in favour of a person other than the landlord. The expression 'sub-lease' is thus not defined in the Transfer of Property Act. Because 'sublease' is an assignment of a lesser term and accordingly there is no privity of contract between the lesser and the sub-lessee (Page 706 of the Mulla's T. P. Act VI Edition). But for a restraint under the Rent Control Act on the act of assignment or transfer of lease on the lessee, without written consent of the landlord a lease can be transferred in law. A -lease may be granted by a person who is himself a lessee and such a lease is commonly called as underlease, sub-lease or derivative-lease, but it is still a lease within the section (Page 642) of Mulla's T, P. Act supra). This rule of English law has been made applicable in India also as declared by the Supreme Court in The Mineral Development Ltd. v. Union of India, , While dealing with a sub-lease in the context of mining lease defined under Section 3(d) and Sections 5,6 and 7 of the Mines and Minerals (Regulation and Development). Act, 1948, it was declared therein that mining lease includes a mining sub-lease. In that context a sub-lease in law is held to be a lease within the meaning of Section 105 of the Transfer of Property Act. In the very words of the supreme Court (at p. 1274 of AIR):
".... The terms 'sub-lease' 'under-lease1 and 'derivative lease' are used conveniently to indicate not only that the transfer is a lease but also that the transferor is not the owner of the property but is a lessee; but the transfer as between a lessee and a sub-lessee is none the less a lease provided it satisfies the definition of Section 105. We may add that Chapter V of the Transfer of Property Act, which deals' with leases of immovable property has nowhere made any distinction between a lease and a sub-lease and all the provisions of that Chapter which apply to a lease also apply to a sub-lease. It is only when dealing with the rights and liabilities of the lessee that Seclion 108(j) of the .Transfer of Property Act lays down that the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and that is where one finds mention of a sub-lease namely, that it is a lease by a person who is himself a lessee. But the fact that the lessor is himself a lessee and the transaction between him and the person in whose favour he makes the transfer by way of lease is called a sublease does not in any way change the nature of the transfer as between them......"
To conclude, the sub-lease or transfer of lease for the purpose of Section 10(2)(ii) (a) of the Act should be a lease within the meaning of Section 105 of the Transfer of Property Act. In other words, a landlord alleging sub-lease as a ground for eviction should prove all the ingredients of the lease under Section 105 of the Transfer of Property Act. The Rent Controller is bound to examine all such ingredients therein to be satisfied that the ground of sub-letting or transfer of lease without the consent of the landlord has been made out by the landlord in such a petition to draw an exception to the mandatory rule that a tenant shall not be evicted within the meaning of Section 10(1) of the Act. Neither assumptions nor imaginations without evidence in the case of bringing out all such ingredients would, be sufficient to pass an order of eviction such a ground. Patently such ingredients of Section 105 of the Transfer of Property Act are never examined by the Courts below in the light of the evidence produced by the petitioners. The allegations in the petition and in the evidence, only mean that some portions in the premises had been let out to somebody during some period. The name of one Ramamurty was included as a sub-lessee later. It was said to be for the purpose of storing tyres and' other goods. Neither it is alleged nor proved that the respondent actually transferred his right of lease to such a portion in favour of Ramamurty or anybody for a definite period, express or implied or in perpetuity, for a consideration of a price paid or promised or of money etc., and that he had lost control over the same schedule premises at any point of time. There is not even a whisper that there was a rate of rent or premium between the parties payable in a particular manner subject to certain terms and that the respondent actually collected it from such persons. Then even assuming that in such a situation respondent could be the lessor, the ingredients viz., who was the lessee under sublease, when it commenced and when it terminated or whether it is continuing or not, are totally silent. On the other hand, the admitted circumstances in the case are against the theory of sub-lease or transfer of lease in this case. Admittedly, the entire premises was lei out to one Pulta Reddy to run a lodge and he was running it under the name and style 'Mourya Lodge'. Later on, allegedly the respondent entered into possession and continued to run the lodge with the name 'Sangeeta Lodge' and rightly or wrongly or otherwise, has been continuing as a tenant therein for the same purpose. Although with little reservations the lodging is said to contain several rooms which are used for hiring as a lodge. The very expression 'lodging' means that the accommodation in the premises would be rented out to individuals on certain terms. The petitioners have never spelt out as to what were those terms between them and Pulla Reddy to use the premises as lodging either at a definite rental to the lodgers or for definite durations. Even assuming that the respondent had rented out a room or portions of the premises to certain members including one Ramamurty for any period, that was within the very purpose of the lease viz., lodging, to which the parties had contracted. Then the question of sublease in favour of the lodgers by the respondent could never arise. If the lodging itself is the sub-lease for a particular purpose, then styling it sub-letting for the purpose of Section 10(2)(ii)(a) of the Act would be anathema of the legal intent therein. Thus, there is a travesty of the real intent of law to call such a conduct of the respondent as amounting to sub-letting when such a consistent finding was given by the Courts below. Apart from that, on a careful examination of the facts and circumstances of the case, it is very clear that such a ground of sub-letting must be a later thought and an outcome of mala fides as could be made out from the conduct of petitioner No. 2. To repeat again, the respondent was never recognised as a tenant although petitioner No. 2 was receiving rent from him; he was commanding him to pay more rent unsuccessfully, allowed him to make repairs to the building at his expense and adjusted the same towards certain portions of the rent and even when the respondent filed R.C.C. 12/83 no such plea of sub-letting was raised and after a long time perhaps as a counterblast to petition under Section 8 of the Act, such a ground has been put up, obviously a half-hearted attempt, as can be made out from the petition allegations and also the testimony of petitioner No. 2 which the the Courts below accepted as a stong ground to pass an order of eviction against the respondent. Neither such a finding nor the order of eviction based on that can be supported to any extent.
36. As regards the mis-user of the premises for a purpose than the one let out to the respondent, the same reasoning and discussion as above would hold good. The purpose of the lease was non-residential one and the premises was actually used as a 'lodging' by the respondent and his predecessors and such a purpose has never changed throughout. If accidentally or incidentally a portion is allowed to be used to store certain goods like tyres etc., without inconsistent with the purpose of the lease, that cannot amount to transgressing or violating the purpose of the lease. The law in this regard to also not really examined or applied by the Courts below and even that is taken for granted. A simple statement of law in this regard may be useful. The precedents are plenty in regard to the;
meaning of the using of a building for the purpose other than that for which it was leased, viz., "...... The primary purpose for which the building was let out should be the determining factor to decide whether the building is a residential or non-residential or whether such a purpose had been changed"... Where the main purpose for which the building was taken is not changed by the tenant, the mere additional user will not come under the ground of change of user."
(Extract of several precedents noted at pages 83-84 of the Commentary on Law of Rent Control in Andhra Pradesh by Mr. P. S. Narayana 3rd Edition 1995).
It must be, with emphasis, concluded that the allegations and the evidence in this case totally failed to bring out the ground of eviction in the orders passed by the Courts below which are thus beyond the pale of law.
37. Now coming to the ground of eviction under Section 10(2)(iii) of the Act alleging acts of waste as are likely to impair materially the value or the utility of the building or premises, both the Courts have held in the affirmative. At the outset, we should repeat the inference of mala fide conduct on the part of the petitioners in regard to such a ground. As already pointed out in regard to raising grounds for eviction, no such ground was thought over even when the counter was filed in R.C.C. 12/83. For the first time a very vague and halfhearted allegation in that regard came out in para 8 of the eviction petition. That has been specifically denied by the respondent in the counter. The testimony of petitioner No. 2 in this regard in a vague manner is also denied by the respondent on oath in his testimony. In spite of this, the learned Rent Controller stated that this aspect of the evidence is not challenged by the respondent and not denied in his evidence and applied the rule of non-traverse again in regard to this ground also. For the same reasons as are afforded while dealing with the ground of sub-letting as above and the improper user, the reasoning and the finding of the learned Rent Controller which was readily agreed upon by the learned Sub-Judge cannot be supported. Under the circum-
stances it has become necessary for this Court to examine the materials on record even without actually assessing the evidence. In this regard, the case of the petitioners is that the respondent has dug up a pit just in front of the entrance of the premises on the eastern side, he was illegally collecting water from the municipal tap since 4 or 5 months and the pit is kept open and is not closed, he is allowing lorry drums to be kept on the pial adjoining the eastern wall of the building and on account of the same, the said wall is damaged and this amounts to acts of waste and has become injurious to the value or the worth of the building. This being the definite case was to be pursued by the petitioners by way of proof. Petitioner No. 2 made a half-hearted testimony in this regard to the effect that the respondent also got stored the oil barrels on the eastern pial of the house and as a result, the eastern wall was damaged and that he sunk a pit near the eastern entrance of the house illegally tapping water from the municipal lines since 4 or 5 months and, however, it was closed later on. Consequently the premises or the whole building has been under the control of the tenants ever since the time Pulla Reddy was the tenant. It is nobody's case that the petitioners did anything in relation to the maintenance or repairs or improvement to the building at any time. On the other hand, it is in the evidence and also in the admissions of petitioner No. 2 throughout that repairs were effected by the respondent, some alterations were also made, even a portion of the amount spent by him was adjusted towards rent. The details of them are available both in the pleadings and also in the evidence. In fact the respondent claimed Rs. 15000/ - towards such repairs and the maintenance, and produced lot of evidence in that regard, however, not finding favour with the Courts of law except to a limited extent. Therefore, if the respondent had either stored some barrels near a wall in the premises or had opened a sump/pit to store water in the premises, it was part and parcel of the same conduct on his part as he did it in so many acts in so many ways which were not opposed to by the petitioners at any time and on the other hand, impliedly allowed ratified and expressly conceded to some extent. More than that the report of the Commissioner dated 22-4-1992 which has become part of the record since not objected to by the parties, failed to bring out any such state of affairs in the premises muchless any damage caused to such a wall due to storing of the barrels or any other material near the wall as alleged and spoken to by petitioner No. 2. There is not even a whisper in the Commissioner's report that any portion of the building is damaged to any extent. On the other hand, it is reported therein that lot of improvements had been made in room No. 3 with certain alterations by giving it a brand new look. Respondent had replaced lot of electric fittings etc., in room No. 3 and there is no other alteration. This report totally rejects the plea of acts of waste as alleged or spoken to by petitioner No. 2. But still both the Courts below have accepted such a theory. It is true that the learned Rent Controller has made some discussions in this regard in para . 18 of his judgment which is opposed to the evidence in the case and the commissioner's report. But the law operating upon such facts to bring home such a ground is not at all considered by him. Even in that regard, the matter appears to have been taken for granted. The expression 'acts of waste' used in Section 10(2)(iii) of the Act is almost in pari materia with Section 108(m) of the Transfer of Property Act. For the same reasons supra, we are bound to make use of the law declared in interpreting such expressions in the Transfer of Property Act. The expression 'acts of waste' is not defined either in the Rent Control Act or in Chapter V of Transfer of Property Act. The term 'waste' is said to be voluntary waste i.e. doing an act which is destructive of the premises; or permissive, i.e. an omission to make necessary repairs. The liability for permissive waste arises out of the obligation under Section 108(m) of the Transfer of Property Act to keep the property in a good condition subject to fair wear and tear. This clause deals with voluntary waste and imposes a liability similar to that imposed upon bailees by Sections 151 and 154 of the Indian Contract Act. An act which a person of ordinary prudence using his own property would commit is not waste although it damages the property (para 722 of Mulla's Transfer of Property Act mentioned supra 7th Edition). It is true that as laid down by the Supreme Court in Manmohandas v. Bishnu-das, while dealing with a matter under Rent Control Act, material alterations would mean important alterations such as those which substantially change the front or the structure of the premises; it was immaterial whether such alterations damaged the premises or diminished the value of the premises or not. What are the substantial alterations which were likely to damage the building or portion of it, which made it value-less or imparie the utility of the building, are not either alleged or proved by the petitioners. On the other hand the Commissioner's report shows substantial improvement in the property by the respondent without any detriment or impairment to the premises. In P. Damodaran v. K. Loga-natha Chettiar, AIR 1956 Madras 54, number of illustrations are given to explain acts of waste or othewise to the demised premises, by the tenant. These observations therein, in substance would be of great assistance to understand the expression 'act of waste'. In short, though changing the nature of the demised premises is technically waste, yet this is not so if the change has been expressly sanctioned by the lessor, and the mere change is not waste unless it is in fact injurious to the inheritance, either by dismissing the value of the estate or by increasing the burden upon it, or by impairing the evidence of title. At any rate, in the case of acts which may be technically waste but in fact improve the inheritance-acts, as they are termed, of ameliorating waste, the Court will not interfere to restrain them by injunction, nor will they be a ground of forfeiture under a proviso for re-entry on commission of waste; nor in general, can damages be recovered in respect of them. But apparently a substantial alteration in the character of the demised premises will be treated as waste and restrained by injunction notwithstanding that the value will be thereby increased, and the lessee is not entitled to pull down a house and build another which the lessor dislikes, or to convert a dwelling house into a shop, and a breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction, To sum up, to constitute voluntary waste by destruction of the premises, the destruction must be wilful or, negligent; it is not waste if the premises are destroyed In the course of reasonable user, and any user is reasonable if it is for a purpose for which the property was intended to be used, and if the mode and extent of the user if apparently proper, having regard to the nature of the property and what the tenant knows of it, and in the case of business premises, to what, as an ordinary business man, he ought to know of it. It is not every act of waste on the part of the tenant which will entitle the landlord to obtain an order of eviction and what should be the nature and extent of the waste will depend on the circumstances of each case. Thus Collecting water in a sump for a lodging for the use of the lodgers is not inconsistent with the purpose of the lease unless it damages the building or impairs it in any manner. It appears that the respondent was insisting to get water facility which the petitioners did not oblige and therefore, he was to have his own arrangements in this regard and in the course of it, a sump might have been opened and some water barrels might have been stored. Even that is rectified. As already pointed out, the Commissioner's report is silent about any acts of waste or damage due to such an alleged conduct of the respondent. That is a report of lot of improvement in the premises which is an anti-thesis of the acts of waste. Even certain alterations mentioned by the Commissioner in the report are not inconsistent with the security of the building, preservation of its form and expression and on the other hand, the Commissioner has praised the manner in which the respondent has made room No. 3 when petitioner No. 2 did not take any interest in the matter. Therefore, judged the matter in any angle it was never a case of act of waste on the part of the respondent in dealing with the demised premises. Such a ground for eviction was totally against the facts and circumstances of the case, and the findings of the Courts below in this regard deserve to be rejected.
38. Patently, C.R.P. No. 538/94 has no merit. The petitioners-landlords have successfully executed the order of eviction against the respondent-tenant by filing O.E.P. No. 6/93 before the Principal District Munsif, Madanapalte who got it executed through his order dated 9-2-1994. The grievance of the respondent is that such an order of eviction could not have been passed to deliver possession of the schedule premises to the petitioners when there is an order of stay passed by the High Court which was also made absolute on 1-10-1993. Mr. Narayana, the learned Advocate for the respondent has contended that the respondent had deposited all the arrears of rent as per the orders of the Rent Controller and fulfilled the condition of the interim order of stay passed by this Court and if there was any deficit in payment of the dues it was due to bona fide mistake in the calculation of the dues and the learned Rent Controller was not justified in passing the impugned order without seeking clarification from the High Court. The order of the learned Rent Controller is self-explanatory. It is based upon the admitted facts which are borne out from the record of this Court also. In C.M.P. 10666/93 in C.R.P. 2348/93 the respondent got an interim order of stay dated 9-7-1993 by this Court. It was a conditional order directing stay of the execution of the eviction order subject to the respondent depositing all the arrears of rent found by the Courts below within four weeks from the date of the order. The time was extended in C.M.P. No. 1066/93 by two more weeks on 4-9-1993. The learned Rent Controller has found that the respondent did not pay or deposit the arrears of rent as directed in the stay order in spite of extension of time and therefore, the conditional order of stay stood thus vacated. The memo of calculations dated 24-1-1994 filed by Mr. Sunderrajan regarding the actual rent to be paid, is not disputed by Mr. Narayana, the learned Advocate for the respondent-tenant nor he has filed any memo of calculations to show that he had actually deposited all the arrears of rent within six weeks as a whole from 9-7-1993. It is true that the rent was calculated at the rate of Rs. 500/- p.m. from January, 1983 to December, 1993 amounting to Rs.66,000/-. That was to be paid or deposited as per the directions of this Court in the interim order. He had deposited only Rs. 59,250/ - leaving a balance/of Rs. 6,750/-. Therefore, such a stipulation in the order was patently not fulfilled if not violated. The order did not thus enure to his benefit. The respondent did not obtain further extension of time before the order of eviction was executed. The contention that the learned Munsif ought to have sought for clarification of this Court is falacious. It was for the respondent to seek such a clarification or extension of time if so advised. Although, the rate of rent is found to be only Rs. 250/ - p.m. as above, as on the date of execution of the order of eviction, the rate of rent judicially decided was Rs. 500/- p.m. and the arrears of rent to be deposited on that basis was correctly taken into account by the learned Munsif and for non-depositing of the same, the impugned order of eviction in this revision petition was rightly passed. Although, the consequences of holding the rate of rent at the rate of Rs. 500/- p.m. will have a consequential result of annulling the order of eviction and the execution of the same and further to have the consequences of restoration etc., if need be, the order of the learned District Munsif in execution petition cannot be called as illegal warranting interference in the revision petition.
39. The result to ensue, in consequence of the discussion supra is to set aside the order of eviction passed by the Courts below against the respondent, by dismissing the eviction petition. Mr. Narayana, points out that since the respondent-tenant is made to pay double the rent in view of the illegal orders passed by the Courts below, an order to refund the excess amount paid by him may be made, by exercising the discretion under Section 115 of the Code of Civil Procedure and furthermore, since the respondent is dispossessed by execution of the illegal order of eviction, he is entitled to restoration of the possession of the demised premises and for that purpose, an order either under Section 144 or under Section 151 of C.P.C. may be passed. Mr. Sunderrajan, the learned Advocate for the petitioners has contended that no such order can be passed since the respondent has to pursue his remedies in accordance with law by filing a suit for recovery of such amount and the possession of the demised premises, since no provisions similar to Section 144 of C.P.C. is found in the Act and such an order cannot be passed under Section 151 C.P.C. which involves an enquiry by the appropriate forum and a suitable order even to the extent of working out equities between the parties prevailing at the relevant time. The law is already declared to be settled that the provisions of C.P.C. can be made applicable in a proceeding under the Act unless the are repugnant to the object and purpose of the Act and when there is no adequate provision made in the Act to meet the requirement arising in a particular situation vide G. Manikyamma (1988 (2) Andh LT 333) (supra), Bhuthulasi (1991 (3) Andh LT 200) (supra), Harikishan (1969 (2) APLJ 290) (supra) and P. N. Rao (FB) (supra). Patently there is no provision in the Act similar to Section 144 or 151 of C.P.C. There is no adequate provisions in the Act to meet the ends of justice or to prevent injustice caused due to certain consequences as in the present case to put back the parties to the same position as they occupied. When such an illegal order was passed. Patently, the respondent is made to pay twice the rate of rent than what he was liable to pay to the petitioners which runs to thousands of rupees resulting in suffering an order of eviction. The order of eviction is found to be illegal. It is already made very clear that a land-lord is not entitled to get anything more than the fair rent or the agreed rent or any rent which is found to be due in a particular proceeding. Any recovery or collection beyond that, would be illegal and void. An order passed to support such an illegal collection should be necessarily void. The person who suffered such an order should be restored to original position. It is to meet such a situation Section 144 of C.P.C. is incorporated. It included all the reliefs of restoration back including the repayment of any excess recovery and the Court is em-
powered to make any order to restore back the parties in the position which they would have occupied but for such a decree or order which is set aside in the appeal, revision or any other proceeding. It is true that such an order can be passed by the Court which passed the decree or order on the application of any party entitled to any benefit by way of restitution or otherwise. Mr. Narayana, the iearned Advocate for the respondent has pointed out that although we may borrow the principle of Section 144 of C.P.C. in this case for restitution of the respondent to the same position as he occupied prior to passing of the orders by the Courts below, it actually occurred not in the process of the normal execution of the decree but because of the non-compliance of the conditions of an interim order passed by this Court and such a consequence if found to be due to the illegal results, it can be rectified only under Section 151 of C.P.C. although by adopting principle and the procedure under Section 144 of C.P.C. This contention appears to be quite sound and reasonable. The respondent has suffered the consequence of excess payment of rent and the dispossession of the schedule premises regarding which he was totally protected under the Act. In other words, he has suffered injustice at the hands of the Courts below for no fault of his. The injustice commenced due to the conduct of petitioner No. 2 at the inception and ended with the injustice due to the impugned orders of the Courts below. In essence, there has been abuse of process of Court for various reasons as above and there is miscarriage of justice and this Court has to exercise its inherent powers to pass an order as may be necessary for the ends of justice or otherwise, the parties would be driven to unnecessary proceedings, expenses and agony in addition to wasting the prescious time of the Courts and authorities in such litigation, Section 151 of C.P.C. as is being so familiar and repeatedly used or misused in Courts deserves to be read and noted again and again viz., "Section 151: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
In the considered opinion of this Court, this provision on the statute book has been the encyclopedia of both procedural law and substantive justice saving the inherent powers of the Court to pass such order as may be necessary to meet the ends of justice or to prevent the abuse of process of the Court which is not circumscribed by any of the provisions contained in the Code of Civil Procedure. In other words, this provision has over-riding effect on all the other provisions of the Code of Civil Procedure vesting absolute and unfettered inherent powers of the Court to pass any order in such situation, however, within the province of the provision. That is what this Court is going to do ultimately, Section 22 of the Act also empowers the High Court in revision, can to pass such order as it thinks fit (to include an order in the nature of Section 144 and Section 151 of CP.C.).
40. In the result, C.R.P. 2348/93 and C.R.P. No. 2349/93 are allowed and C.R.P. Nos. 2811/93, 3437/93 and 538/94 are dismissed. Consequently, the order of the learned Sub Judge in C.M.A. No. 2/90 and 3/90 and the order of the Rent Controller in R.C.C. Nos. 12/83 and 3/85 are set aside. In all such proceedings up to this Court, the respondent-tenant shall be entitled to recover costs from the petitioner-landlords. The respondent-tenant shall be entitled to the refund or to recover all the rents paid to the petitioners in excess (at the rate) of Rs. 250/ -per month, with interest at 12% per annum from the respective dates of payment till the date of recovery. He shall also be entitled to be put into possession of the demised premises. The respondent shall be entitled to execute this order against the petitioners as if a decree is passed in his favour if the petitioners fail to pay him such execessly recovered rent and fail to put him in possession of the demised premises within a period of one month from today.
41. Order accordingly.