1998 JTR(SC) 526
1999 AIR(SC) 547 ; 1998 AIR(SCW) 3867 ; 1998 5 JT 630 ; 1998 2 RCR(Rent) 655 ; 1998 5 SCC 331 ; 1999 KHC 1594
SUPREME COURT OF INDIA
S.P.Bharucha : V.N.Khare
M.Naresh Kumar
Versus
B.Nagalaxmi
Case No. : 14869 of 1996
Date of Decision : 4/23/98
A long-standing practice of irregular rent payment accepted by the landlord does not constitute wilful default, even if a notice for regular payment was previously issued, provided the landlord continued to accept irregular payments after such notice.
Act
Referred
:ANDHRA PRADESH BUILDINGS LEASE, RENT AND EVICTION CONTROL ACT
: S.22
(A) A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 - Section 22 - Eviction of tenant - Wilful default in payment of rent - Established practice of paying rent at irregular intervals for several years accepted by landlady - Notice sent by landlady's advocates to pay rent regularly - Despite notice, tenant continued irregular payments and landlady continued to accept them until the filing of the eviction petition - Such conduct indicates continuation of earlier practice and does not amount to wilful default - High Court erred in interfering with findings of lower authorities. (Paras 2, 3, 4)
Facts of the case:
A landlady filed an eviction petition against a tenant on the grounds of wilful default in payment of rent for three months. The Rent Controller and the appellate authority ruled in favor of the tenant, finding that a practice of paying rent every two or three months had existed for seven or eight years without protest from the landlady. The High Court reversed this decision, relying on a notice sent by the landlady's advocates years prior, which had directed the tenant to pay rent regularly and warned that future defaults would not be condoned.
Findings of Court:
The High Court failed to account for the fact that after the notice was sent in 1980, the landlady continued to accept rent at irregular intervals until the eviction petition was filed in 1983. This demonstrated that the earlier practice had continued. Furthermore, the High Court overlooked the finding that the default prior to the filing of the petition was only for two months and not three.
Issues: Whether the continuation of an established practice of irregular rent payment, despite a prior notice to pay regularly, constitutes wilful default when the landlord continues to accept such payments.
Ratio Decidendi: Where a practice of irregular rent payment has been established and the landlord continues to accept such payments even after issuing a notice for regular payment, such defaults do not constitute wilful default as the conduct of the parties indicates the continuation of the established practice.
Result: Appeal allowed.
Facts of the case:
A landlady filed an eviction petition against a tenant on the grounds of wilful default in payment of rent for three months. The Rent Controller and the appellate authority ruled in favor of the tenant, finding that a practice of paying rent every two or three months had existed for seven or eight years without protest from the landlady. The High Court reversed this decision, relying on a notice sent by the landlady's advocates years prior, which had directed the tenant to pay rent regularly and warned that future defaults would not be condoned.
Findings of Court:
The High Court failed to account for the fact that after the notice was sent in 1980, the landlady continued to accept rent at irregular intervals until the eviction petition was filed in 1983. This demonstrated that the earlier practice had continued. Furthermore, the High Court overlooked the finding that the default prior to the filing of the petition was only for two months and not three.
Issues: Whether the continuation of an established practice of irregular rent payment, despite a prior notice to pay regularly, constitutes wilful default when the landlord continues to accept such payments.
Ratio Decidendi: Where a practice of irregular rent payment has been established and the landlord continues to accept such payments even after issuing a notice for regular payment, such defaults do not constitute wilful default as the conduct of the parties indicates the continuation of the established practice.
Result: Appeal allowed.
(1) THIS appeal by special leave assails the correctness of the judgment of a learned Single Judge of the High court of A. P. on a civil revision petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960.
(2) THE respondent-landlady had filed a petition for eviction against the appellant-tenant on the ground, inter alia, that he had committed wilful default in payment of rent for the months of September, October and November 1983. The Rent Controller as well as the appellate authority held against the landlady, finding that for seven or eight years the tenant had been sending rent once every two or three months and the landlady had not protested; thus, a practice had developed between the parties to pay and receive the rent at irregular intervals. There was, therefore, no wilful default in payment of rent for September and October 1983. The question of payment of rent for November 1983 did not arise because it fell due only after the eviction petition was filed.
(3) THE High court took into account a letter dated 27/10/1980 sent by the landladys advocates in reply to a notice addressed by the tenant. Therein the landladys advocates stated: "Please direct your client to send the rents regularly every month. If your client commits any default in future, our client will not condone the same". The High court found that, in spite of this notice, the tenant had "repeated the payment of rent on irregular intervals". This amounted, in its view, to wilful default as he had been put on notice that in case he repeated the practice, he would be liable to face the consequences.
(4) IT would appear that the High court did not take account of the fact that the letter written by the advocates for the landlady was dated 27/10/19800 and that even thereafter, until the eviction petition was filed on 2-12- a 1983, rent had been paid and accepted at the same irregular intervals. In other words, earlier practice had continued. The High court ought not to have interfered, in the circumstances, with the findings of the authorities below. The High court also does not appear to have taken note of the fact found that the default, if any, prior to the filing of the eviction petition was only of two months and not three,
(5) THE appeal is allowed. The judgment and order under appeal is set aside and the revision petition is dismissed. No order as to costs.