GANESHLAL Vs. MEERA BAI

JUDGEMENT

(1.) THE petitioner is the tenant. According to him he was put in a quandary in a fight between Jadav Bai, the original owner and Meera Bai her successor. Originally the property belonged to one Miarilal. He died intestate and Jadav Bai succeeded him in the year 1962, Jadav Bai authorised his grandson Muralidhar to collect rents from the petitioner. It is the case of the respondent that she purchased the property under a registered sale deed from Jadav Bai, her grandmother and eversince she became the owner. she called upon the petitioner not to make any payments to Muralidhar by issue of notice Ex. B-4, dt. July 1971 and yet the petitioner did not make payments. THEre by the petitioner committed wilful default from February 1971 till the date of her filing the petition in April, 1973. THE case of the petitioner is that under Ex. R-l, dated August 3, 1971, issued by Jadav Bai called upon him to continue to pay the rents to Muralidhar and accordingly he has been paying the rents. THEreafter, the suit O.S. 621/71 was laid by Jadav Bai in the civil court to annul the sale made in favour of the respondent. THE petitioner was also impleaded as a defendant therein under those circumstances, he did not commit any default, much less wilful default. THE trial court accepted the case of the respondent and ordered eviction on the ground that there was an attornment and thereafter he did not pay the rents to the respondent. THE appellate Court held that though there is no attornment the petitioner was called upon to pay the rents to the landlady; at any rate after the receipt of the notice in March 1972 in O.S. 621/71 the petitioner would have made avail of the provisions of Section 9 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Act 1, 15 of 1980) for short, "the Act". He did not make avail thereof. THErefore, his default is wilful de-fault. Accordingly it confirmed the order of eviction.

(2.) IN this revision, Sri Venugopal Reddy, learned counsel the petitioner contends that on the facts in this case, it cannot be said that there is a wilful default though there is a default. Therefore, unless there is a finding that it is a wilful default in payment of the rent eviction cannot be ordered. I am wholly unable to agree with the learned counsel. Section 10 (2) (i) of the Act postulates that a tenant cannot be evicted unless he has not paid or tendered the rent due by him in respect of the building within fifteen 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 month next following that for which the rent is payable. It is well settled that even default is not wilful default unless the tenant committed default deliberately or with supine indifference. It is now well settled that a tenant to make avail of the statutory right to continue in possession, has to pay and continue to pay the rent and it is his statutory obligation to pay the rent within the stipulated period under the contract or thirty days from last day of the month next following for which rent is payable. If it is not paid it is for him to give explanation for the default. If it is found unacceptable and negatived, the default constitutes wilful default. Accordingly, it is the duty of the petitioner to pay the rent in terms of Section 10 (2) (i) if he intends to make avail of the statutory protection for his continuance as a tenant. Admittedly, rent has not been paid from February 1971 to April 1973 or a proper and acceptable explanation has not been given. The question is, to whom the rent is to be paid? On the narrative of the facts, the respondent issued Ex. B-4 notice, dated July 28, 1971 directing the petitioner to desist from paying the rent to Muralidhar who was hitherto authorised and was collecting the rent. On the other hand, Jadav Bai, the predecessor in title, issued notice Ex R-1, dated August 3, 1971 calling upon the petitioner to continue to pay rents to Muralidhar. Thereby there were rival claims by the persons asserting title to the demised premises. Under those circumstances, there is an enabling provision engrafted in Section 9 (3) of the Act, which reads.