K JAGANNADHAM Vs. J NARASIMHA

JUDGEMENT

(1.) Aggrieved by the order of the Chief Judge, City Small Causes Court, Hyderabad, dated 25-7-1997 in RA No.3 of 1997 whercunder the appeal filed by the respondent herein under Section 12 of the A.P, Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, 'the Act') was allowed and the order of the Rent Controller dated 4-12-1996 in Memo SR No.1589 of 1996 in IA No.153 of 1996 in RC No,284 of 1995 was set aside and the matter was remanded to proceed with the trial of the case and to dispose of the same in accordance with law, the present Revision petition is filed.

(2.) The facts leading to the filing of this case are that the respondent has taken the suit schedule premises on lease on payment of Rs.450.00 per month and committed default in payment of rent from February, 1995. In those circumstances, the landlord filed RC No.284 of 1995 seeking eviction of the tenant both on the grounds of willful default in payment of rent and personal occupation. During the pendency of the petition, the petitioner filed an application under Section 11(1) of the Act seeking payment of the admitted rents due to him. After hearing both sides, the Rent Controller by an order dated 19-7-1996 directed the respondent herein to pay at the rate of Rs.450.00 per month from February, 199 5/07/1996 and also further directed to continue to deposit the rent in the Court at the rate of Rs.450.00 per month on or before 5th of every month, failing which Section 11(4) proceedings will follow. As far as the arrears are concerned, at the rate of Rs.450.00 the respondent has to pay Rs.8,100.00on or before 30-7-1996. But a typographical error has taken place in computing the amount and the arrears were shown as only Rs.5,400.00. Taking advantage of the typographical error, the respondent chose to pay only Rs.5,400.00. In those circumstances, the petitioner filed a Memo in IA No.153 of 1995 on 16-8-1996 for correction of the payment of arrears from Rs.5,400.00 to Rs.8,100.00. The learned Judge seemed to have corrected the clerical error on 16-8-1996 itself. This order was passed by the Rent Controller only after notice was served on the Counsel for the respondent on 16-8-1996. The endorsement of the Counsel is as hereunder. "Received copy subject to filing the counter at 11.30a.m. Sd/-, 16-8-1996".Hence, it cannot be said that the order was passed without notice to other side as viewed by the appellate authority.

(3.) It should be kept in mind that a practising advocate is the landlord-petitioner and in his anxiety to receive the amounts, he filed Memo SR No. 1589 of 1996 for passing the order under Section 11(4) of the Act. Thought he Memo was filed the Rent Controller seemed to have given notice on 21-9-1996 and the same was served on the respondent's Counsel on 23-9-1996. Even then, the respondent did not choose to pay the amount. Thereafter, the matter seemed to have underwent some adjournments and ultimately, arguments were heard on 26-11-1996 by which time the respondent failed not only to pay the arrears but also the rents that have become due for the month of October, 1996 as directed by the Court earlier. Ultimately, orders were pronounced by the Rent Controller on 4-12-1996 ordering eviction. In passing the above order the Rent Controller relied upon a judgment of Patna High Court in Saikishore Gattani and another v. Shrimati Godawari Devi, AIR 1996 Pat. 30, wherein His Lordship held that the tenant cannot take advantage of typographical error knowing fully well the amount payable by him as per the agreed rent. The Rent Controller has also taken note of the fact of receiving notice by the respondent's Counsel on 23-9-1996 and the fact that the amounts till then remained unpaid. Atleast even at that stage when the matter was heard and after three months the respondent has not come forward to pay the arrears. At this stage the Counsel appearing for the respondent brought to my notice mat the balance amount of arrears Rs.2,700.00 was paid on 5-10-1996 but at the same time the rent mat lias become due from October, 1996 remained unpaid. Questioning the above order, RANo.3 of 1997 is filed. The learned District Judge mainly proceeded on the ground that the clerical mistake was corrected on 16-8-1996 without giving notice to the respondent which is obviously incorrect. Secondly, the learned Judge having taken the fact that on 5-10-1996 tlie arrars of Rs.2,700.00were paid, he has forgotten that by that date the rent for October has become due and the same remained unpaid. Further, it is only after filing of the appeal he paid the rents to January, 1997 on 20-1-1997. Evenafter the filing of the appeal also the respondent was not prompt in payment of rents. Hence, the conduct of the respondent clearly establishes that he wants to take the Court for a ride. When he was summoned to the Court to find out whether a compromise can be effected, he unhesitatingly stated that he has given his own house to his son and he is prepared to purchase the property in question and he cannot vacate the premises. This is the conduct of the respondent. Such a conduct on the part of the respondent cannot be tolerated by Courts.