DAKAYA @ DAKAIAHversusANJANI

                         DAKA YA @ DAKAIAH                                       A
                                      v.
                                  AN.JANI

                            OCTOBER 12, 1995

                [G.N. RAY AND S.B. MAJMUDAR, .TJ.]                               B

      AF Buildings (Lease, Relit and Eviction) Control Act, 1960: Section
IO.

     Tenant-Eviction-Default in payment of rent-Notice Joi-Entire                C
amount under default tendered before institution of suit-Held cause of action
for eviction vanished--Eviction order set aside.

       The appellant-tenant committed default in payment of rent. How-
ever, immediately after receipt of notice from the respondent-landlady, the
tenant remitted the monthly rent of Rs. 375 which was accepted by the            D
landlady. Another Bank Draft for Rs. 1125 sent by the tenant was not
encashed by the landlady and the same was deposited in the Court.
Thereafter, on an application filed by the landlady under Section 10 of the
A.P. Buildings ( Lease, Rent and Eviction) Control Act, 1960, the Rent
Controller passed an eviction order holding that the tenant has committed        E
willful default in payment of rent. The eviction order was upheld by the
first appellate court and the High Court.

      In appeal to this Court it was contended that unless the eviction
order is set aside the tenant "ill suffer serious prejudice because he is also
carrying on business in the tenanted premises and also willing to pay such       F
monthly rent as may appear just to the Court.

      Allowing the tenant's appeal, this Court

       HELD : l. As the tenant had already sent the Bank Draft covering
the entire default, there was also no occasion for the Rent Controller to        G
direct deposit of arrears within the stipulated period. The Rent Controller,
the first appellate court and the High Court have failed to appreciate the
incidence of tendering the entire amount under detllult before the institu-
tion of the suit. As a result, the courts beltnv have erroneously proceeded
on the footing that there had been a wilful default for which the landlady H
                                   291
    292                      SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A was entitled to a decree for eviction. (294-C-D]

          2. The tenant-appellant is carrying on business in the disputed
    premises and the order of eviction cannrit but affect his interest seriously.
    Further whether wilful or not, the fact remains that the tenant defaulted
    in payment of rent for several months for which the landlady, stated to be
B   poor and helpless widow has suffered considerable prejudice. Therefore,
    in consonance with equity and justice the order of eviction is set aside and
    the tenant-appellant is directed to pay to the respondent-landlady the rent
    for the premises in question with effect from October 1,1995@ rupees five
    hundred fifty per month. (294-G-H, 295-A)
c         S. Su11daram Pillai Etc. v. V.R. Pattabirama11, (1985) 2 SCR 643 =AIR
    (1985) SC 582, relied on.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No.9461 of
    1995.
D
         From the Judgment and Order dated 13.2.95 of the Andhra Pradesh
    High Court in C.R.P. No. 2824 of 1994.

            Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellant.

E           T.N. Rao, S. Udaya Kumar Sagar and V. Narender for the Respon-
    dent.

            The following Order of the Court was delivered :

            Leave granted.
F
          Heard learned counsel for the parties. This appeal is directed against
    the decision of the High Court of Andhra Pradesh dated February 13,1995
    passed in Civil Revision Petition No.2824 of 1994. By the said impugned
    judgment, the Andhra Pradesh High Court has dismissed the revision
G   application made against the order dated July 4, 1994 of the Additional
    Chief .Judge, City Small Causes Court, Hyderabad in R.A. No.203 of 1992
    affirming the order dated April 29,1992 passed by the Prl. Rent Controller.
    Secunderabad in R.C. No. 316 of 1988.

            The respondent-landlady made an application under Section 10 of
H the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960
                          DAKAYA v. ANJANI                            293

(hereinafter referred to as the A.P. Rent Act) for eviction of the tenant A
appellant on the ground of wilful default of payment of rent for the period
September, 1988 to November, 1988 amounting to Rs.1125. There is no
dispute in this case that the tenant failed to make the payment within the
stipulated period for the said months. It however, appears to us that the
landlady gave a notice to the tenant on December 6,1988 claiming payment
                                                                             B
of rent for the said months of September, 1988 to November, 1988. The
landlady however, demanded surrender of the tenancy of the tenant within
one week from the date of receipt of the notice dated December 6, 1988.
The tenant initially sent a money-order for a sum of Rs.375 being the
monthly rent on December 7,1.988 and such amount has been received by
the landlady and accepted by her. Within five days thereafter, on Decem-    c
ber 12, 1988, the tenant sent a Bank Draft for Rs.1125 and it is an admitted
position that such draft was received by the landlady before filing the suit
for eviction. The said draft, however, has not been encashed by the
landlady and the same has been deposited before the Rent Controller in
the eviction proceedings. The Eviction Petition was filed before the Rent D
Controller on December 19, 1988.

       It has been held by the Rent Controller that the tenant having
committed wilful default, the landlady is entitled to get the order of
eviction. Accordingly, order of eviction was made. The said view was
upheld in appeal and as aforesaid the revision application was dismissed    E
by the High Court.

        Mr. Dhruv Mehta, learned counsel appearing for the appellant, has
 drawn our attention to the decision of this Court in the case of S. Su11-
 dmwn Pillai Etc. v. V.R. Pa11abira111a11, [1985] 2 SCR 643 ~ AIR1985 SC F
 582. In the said decision, the provisions of Section JO of the Tamil Nadu
 Buildings (Lease and Rent Control) Act, 1960 was taken into considera-
 tion. It may be indicated here that Section 10 of the Tamil Nadu Buildings
 (Lease and Rent Control) Act, 1960 is pmti mate1ia similar to Section 10
-of the A.P. Rent Act excepting that in Tamil Nadu Act an explanation has G
 been added to the proviso to Sub-Section (2) of Section 10 of the Tamil
 Nadu Act. The said explanation provides that for the purpose of sub-sec-
 tion (2) of Section 10 of the Tamil Nadu Act, default to pay or tender rent
 shall be construed as wilful, if the default by the tenant in the payment or
 tender of rent continues after the issue of two monlhs notice by the
 landlord claiming the rent. This Court in the aforesaid case of S. Sundaram H
    294

A Pillai has indicated that default per se cannot be construed as wilful and
    keeping in mind the beneficial purpose of the Rent Acl lo protect the
    eviction of the tenant, if the payment has been made before the institution
    of the suit, the cause of action for instituting of the suit, will vanish. In the
    instant case, immediately on receipt of demand of payment of rent, the
    tenant initially sent a sum of Rs.375 by money order and thereafter a Bank
B
    Draft for Rs.1125 covering the entire period of default from September,
    1988 to November, 1988 was sent to the landlady. It therefore, appears to
    us that there was no occasion to proceed on the footing that there was a
    wilful default for which an order for eviction of the tenant was to be passed.
    As the tenant had already sent the Bank Draft covering the entire default,
c   there was also no occasion for the Rent Controller to direct deposit of
    arrears within the stipulated period. In our view the Rent Controller, the
    first appellate court and the High Court have failed to appreciate the
    incidence of tendering the entire amount under default before the institu-
    tion of the suit. As a result, the courts below have erroneously proceeded
D   on the footing that there had been a wilful default for which the landlady
    was entitled to a decree for eviction.

          We may indicate here that the learned counsel for the appellant has
    submitted that the tenant will suffer serious prejudice if an order of eviction
    is maintained because he is carrying on his business in the tenanted
E   premises. The learned counsel has also submitted that if it commends to
    this Court that interference under discretionary jurisdiction under Article
    136 of the Constitution is not warranted unless the tenant is prepared to
    pay a reasonable and fair market rent, the tenant-appellant is willing to pay·:
    such monthly rent as may appear just and proper to this Court, so that the .
F   order Clf eviction is set a.side and the appellant is permitted to continue his
    possession.

          It appears to us that the tenant-appellant is carrying on business in
    the disputed premises and the order of eviction cannot but affect his
    interest seriously. It also appears to us that whether wilful or not, the fact
G   remains that the tenant defaulted in payment of rent for several months for
    which the landlady, stated to be poor and helpless widow, has suffered
    considerable prejudice. It therefore, appears lo us that it will he consonant
    to equity and justice if the interference with the impugned order of eviction
    is made in this appeal with a direction to the tenant to pay fair and
H   reasonable rent to which the tenant-appellant is ready and willing. Con·
                          DAKA YA v_ ANJANI                             295

sidering the facts and circumstances of the case, we set aside the order of    A
eviction by directing that the tenant-appellant would pay to the respondent-
lan<llady the rent for the premises in question with affect from October 1,
1995@ Rs-550 (Rupees five hundred fifty only) per month. The appellant-
tenant will also pay any other amount, if remains unpaid towards the
payment of rent at the old rate of Rs.375 per month till September 30, 1995
within a period of six weeks from today. In default, the appeal will stand
                                                                               B
dismissed. We however, make it clear that this order will not preclude the
landlady to seek eviction of the tenant in future on such grounds as may
be available in law. The appeal is accordingly allowed without any order
as to costs.

T.N.A.                                                     Appeal allowed.
                                                                               c