@JUDGMENTTAG-ORDER
Ranga Reddy, J.@mdashThe above four Revisions petitions i.e., C.R.P.Nos. 2658/90, 2941/90, 3122/ 90 and 3129/90 are directed against the common Judgment in R.A.Nos. 387/89, 389/89, 390/89 and 388/89 respectively by which the orders of the Rent Controller made in R.C.Nos. 291/84, 292/84, 1972/86 and 1973/86 directing eviction of the tenant was revised.
2. The Revision petitioners are the landlords and the respondents are the tenants. The Revision petitioners are the owners of two mulgies bearing Municipal Door Nos. 3-2-840/6 and 3-2-840/7 situated at Kachiguda, Hyderabad. The respondents took the mulgies on a monthly rent of Rs. 500/- each and executed registered lease deeds separately in respect of each mulgi. They are Exs.A-1 and A-2 dated 23rd September, 1978. As per the terms of lease deed the tenancy commences on first of every calendar month and that the rent is payable in advance on or before 10th of every month. The tenants had also agreed to pay the municipal taxes. It was further stipulated that non-payment of any two months rent as agreed to will entitle the landlords to eject the tenants on the ground of wilful default. The tenants deposited a sum of Rs. 10,000/-. This deposit has to be returned to the tenants at the time of termination of tenancy after deducting the arrears of rents, electricity charges etc., if any. The rental deed further stipulates that the tenants should pay municipal taxes within one month from the date of intimation by the landlords. These are the conditions of the lease relevant for disposal of the Revision petitions.
3. The petitioners-Landlords filed R.C.No. 291/84 and R.C.No. 292/84 for eviction of the tenants from the mulgies 840/6 and 840/7 respectively on the ground that the tenants have committed wilful default in payment of property tax as well as monthly rent. The tenants did not pay the tax due to the Municipality for the period from 1-11-1979 to 30-10-1981 in respect of both the mulgies. So, the landlords filed a suit in O.S.No. 1404/81 on the file of II Addl. Judge, City Civil Court, Hyderabad seeking eviction of the tenants and also for realisation of the arrears of municipal taxes for the said years. While the suit was pending, the Supreme Court struck down Section 32 (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act ''hereinafter referred to as the ''Act''. The Government of Andhra Pradesh issued a notification bringing all the buildings which are ten years old and whose rent does not exceed Rs. 1000/- per month within the purview of the Act. In the meanwhile according to the landlords the tenants committed wilful default in payment of rent in respect of both the mulgies for the months of August, 1981 and October, 1981 within the stipulated time. The rent payable for August, 1981 was paid on 10th September, 1981 and the rent for the month of October, 1981 was paid on 12th of November, 1981. The landlords therefore filed R.C.Nos. 291/84 and 292/84 for eviction.
4. Subsequent to the filing of these two petitions for eviction, the landlords filed separate I.As. in each petition for eviction and got the petitions amended. By that amendment the landlords pleaded that the tenants sent a cheque for Rs. 1,000/- towards rent for September, 1985 for both the mulgies and when the cheque was presented for encashment it was dishonoured for non-availability of funds. Apart from that it is contended that the tenants committed wilful default in payment of municipal taxes for the period 1-11-1981 to 30-9-1984 amounting to Rs. 3,572-10 Ps. for each mulgi. The landlords paid the municipal tax as tenants did not pay the same in spite of repeated reminders. Municipal tax for the period 1-11-1981 to 31-3-1984 for both the mulgies amounting to Rs. 5,919-48 was paid by the tenants by way of Demand Draft along with a covering letter dated 28-7-1984 and the same was received by the landlords on 1-8-1984. Similarly the tenants sent another Demand Draft for Rs. 1,224-72 along with a covering letter dated 26-10-1984 towards the municipal tax for the period from 1-4-1984 to 30-9-84 and the same was received by the landlords on 6-11-1984. The tenants again sent a Demand Draft for Rs. 1,224-72 with a covering letter dated 5-1-1985 towards municipal tax for the period from 1-10-1984 to 31-3-1985 and the landlords received the same on 11-1-1985. The tenants have not paid the tax for the subsequent period from 1-4-1985 to 30-9-1985. Thus, according to the landlords there was default in payment of rent as well as taxes even during the pendency of the petitions for eviction and the landlords therefore pray for eviction of the tenants and for vacant possession.
5. The tenants filed counters in R.C.Nos. 291/84 and 292/84 with identical averments. In those counters they contended that they have not committed any wilful default either in payment of rent or municipal tax. In the lease deed, it is mentioned that the property tax is Rs. 18/- per month and the same is payable as and when demanded. The tenants have been paying property tax as when demanded. Eventhough the tenants are not liable to pay tax at the enhanced rate, yet in order to avoid controversy the tenants have been paying tax at the enhanced rate.
6. The landlords filed O.P.No. 1404/1981 on the file of II Additional Judge, City Civil Court, Hyderabad seeking relief of eviction and recovery of arrears of tax. When that matter is pending the petitions filed for eviction before the Rent Controller are not maintainable. The tenants had not committed any wilful default in payment of rent for the months of August and October, 1981. Generally Municipal tax was levied once in every half year and the demand notice was served on the landlord. The tenants are liable to pay the tax as per the terms of the lease deed within one month from the date of intimation by the landlord. The tenants therefore request for dismissal of the petitions filed for eviction.
7. While the above two Rent Control petitions were pending the landlords filed two other petitions in R.C.No. 1972/86 and 1973/86 for eviction in respect of the premises bearing Nos. 840/6 and 840/7 reiterating what they had stated in the earlier petitions for eviction. It was further contended in those eviction petitions that the tenants committed default in payment of rent for the month of January, 1986. According to the landlord the rent which was payable by 10-1-1986 was paid to him by way of draft on 17-1-1986. Similarly there was default in payment of rent for the month of May, 1986. The tenants sent the rent for the month of June which was payable on 10-6-1986 on 24-7-1986. It is further alleged that the tenants had also committed default in payment of municipal tax for the period subsequent to 1-4-1985. The landlords therefore prayed for eviction of the tenants. In these two petitions also the tenants have filed counters denying the alleged wilful default.
8. The learned Rent Controller on consideration of the evidence adduced found that the tenants had committed wilful default in payment of taxes and that they are liable for eviction and consequently allowed the petitions by a common order dated 12-6-89. Aggrieved by that order the tenants have filed appeals before the Chief Judge, City Small Causes Court, Hyderabad. The learned Chief Judge allowed those appeals by a common order dated 30th July, 1990. He observed that though there was default in payment of rent in the sense that it was not paid by 10th of every month in advance as stipulated in the agreement, yet they cannot be deemed as wilful defaults as would entitle the landlords to evict the tenants inasmuch as they were only belated payments. The learned Chief Judge, refused to treat them as wilful defaults warranting an order of eviction. In the rental deed it is stipulated that the rents are payable on 10th of every month in advance. Except in respect of the rent payable for September, 1985 the tenants had paid rent either by cheque or draft within the few days after 10th. The Chief Judge observed that the landlords have with them an advance of Rs. 10,000/- in respect of each mulgi and that therefore it would not be proper to treat these belated payments as amounting to wilful default. It is true that the landlords received a cheque for Rs. 1,000/- towards payment of rent for both the mulgies. But when the cheque was presented it was dishonoured and that payment was made in December, 1986. The learned Chief Judge observed that this dishonour of the cheque was not intimated to the tenants. But it could be seen from the record that the landlords filed an application for amendment of the petition raising the plea regarding nonpayment of rent for September, 1985. The same was allowed. In that application the tenants had also filed a counter. So, it cannot be said that the tenant had no knowledge of dishonour of the cheque. The rent for the month of September, 1985 was paid only in December, 1986 as admitted by the tenants themselves. But according to the recitals in the lease deed the landlords would be entitled to ask for eviction if there is default in payment of rent for any two months (not two consecutive months as observed by the learned Chief Judge). Under the circumstances, I find that the learned Chief Judge was right in refusing to order eviction on the ground of wilful default in payment of rent.
9. The tenants had further agreed to pay the municipal taxes. According to the terms of the lease deed this tax should be paid by the tenants within one month from the date of intimation by the landlord. The Municipality would serve demand notice on the landlord and the landlord is expected to inform the same to the tenants and on such information the tenants have to pay taxes within one month from the date of intimation. It is contended by the tenants that the landlord had not intimated them of the tax payable and that therefore the non-payment of tax even if true cannot be construed as wilful default. The landlord has contended that the tax is payable every month pro-rata along with the rent. But I am unable to agree with this contention, as the recitals in the lease deed would not warrant such interpretation. If what the landlords contend were to be true, it would not have been mentioned in the lease deed that the tenant has to pay the tax on being informed by the landlord within one month from the date of intimation. The recitals in the lease deed would indicate that the landlord on service of the demand notice in respect of tax is bound to intimate the tenant and on such intimation the tenant has to pay tax within one month. In cases where the tenant has agreed to pay the municipal tax, any nonpayment of tax would amount to non-payment of rent. Thus, the tax is also included in the definition of rent as reported in Haji Mohamed v. Globe Theatres AIR 1956 Mad. 216 and
