A. S. Pandurangan Chettiar v. C. S. R. Bashyam — 1991 DIGILAW 508 (MAD)

Judgment :- In this revision thelandlord is the petitioner and the tenant is the respondent. The petition for eviction was filed on three grounds, namely, wilful default in payment of rent under S. 10(a)(i), for demolition and reconstruction under S. 14(i)(b) and for owners occupation under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as Act. The Rent Controller ordered eviction. However, on appeal the Rent Control Appellate Authority came to the conclusion that there is no wilful default in payment of rent, there is no bonafide in requiring the petition premises for demolition and reconstruction under S. 14(i)(b) of the Act and there is also no bona fide on the part of the landlord in requiring the petition premises for his own use and occupation. Accordingly, the order of the Rent Controller was reversed and the eviction petition was dismissed. 2. The first ground in this revision relates to wilful default in payment of rent. The petitioner herein is the landlord of the petition premises and the respondent herein is the tenant under him in respect of the petition premises on a monthly rent of Rs. 600/-. The building is a non-residential one. According to the landlord, the tenant committed wilful default in payment of rent from 1-1-1981 to 31-5-1981 for a period of five months. The landlord submitted that the tenant is a chronic defaulter and he never used to pay the rent periodically at the end of every month. Therefore, according to the landlord in spite of several demands, the tenant neglected to pay the rent for the petition period. Hence he filed eviction petition. In the counter, the tenant stated that he used to pay the rent by way of cheques, pay orders and money orders etc., periodically and therefore there is no arrears of rent as alleged by the landlord. The tenant further submitted that the landlord used to receive the rent in one lump sum as and when the tenant chooses to pay the same. Therefore, in as much as the tenant paid the rent for the petition period, there is no wilful default in payment of rent. The landlord examined himself as a witness, so also the tenant examined himself as a witness. The landlord filed as many as four documents and the tenant filed as many as 12 documents. Therefore, in as much as the tenant paid the rent for the petition period, there is no wilful default in payment of rent. The landlord examined himself as a witness, so also the tenant examined himself as a witness. The landlord filed as many as four documents and the tenant filed as many as 12 documents. Considering thefacts arising in this case, the learned Rent Controller came to the conclusion that there is wilful default in payment of rent for the petition period as alleged by the landlord. On appeal, the Rent Control Appellate Authority came to the conclusion that the order passed by the Rent Controller is without any basis, accordingly the same was set aside. 3. Before this Court, the learned Senior Counsel Mr. R. Krishnamurthy, appearing for the landlord submitted as under: The tenant is a chronic defaulter and he never used to pay the rent in time. It is not correct to say that the landlord refused to receive the rent when it was sent by money order. Since the cheques sent by the tenant related to the earlier period, they were not accepted by the landlord. The learned counsel further submitted that in spite of the fact that a duty is cast upon the tenant to render the rent, he did not do so. It was further submitted that even if the landlord retused to receive the rent, a duty is cast upon the tenant to follow the procedure is prescribed under the Act, which the tenant has not done. The learned counsel also contended that long after the petition was filed, the tenant was depositing the rent in a bank in his own name and that would not absolve him from his liability. It was therefore pleaded that the Appellate Authority was not correct in coming to the conclusion that there is no wilful default in payment of rent. Accordingly, it was pleaded that the order passed by the Appellate Authority on this aspect may be set aside the eviction may be ordered. 4. On the other hand, the learned senior counsel for the tenant Mr. R. Gandhi, contended as under: The tenant never committed wilful default in payment of rent. Five months rent was sent by way of cheques to the landlord and the landlord refused to encash the same. 4. On the other hand, the learned senior counsel for the tenant Mr. R. Gandhi, contended as under: The tenant never committed wilful default in payment of rent. Five months rent was sent by way of cheques to the landlord and the landlord refused to encash the same. The tenant came to know that the landlord was not encashing the cheques only in the month of July 1981 and thereafter he was depositing the rent in the bank account in his own name, to show his bona fide. It is also customary between the landlord and the tenant to pay the rent in one lump sum once in three or four months as and when the tenant chooses to do so. Soon after the eviction petition was filed, the tenant deposited the entire rent in to court. No notice was sent by the landlord demanding the tenant to pay the arrears of rent. There is an advance of Rs. 5500/- with the landlord paid by the tenant and therefore even if there is any arrears of rent for the petition period it cannot be considered as wilful default in payment of rent, since the advance is adjustable towards the arrears of rent. Therefore, the Appellate Authority was correct in coming to the conclusion that there is no wilful default in payment of rent. Accordingly, it was submitted that no interference is called for with the findings given by the Appellate Authority on this aspect. 5. I have heard the rival submissions. 6. The fact remains that the petitioner herein is the landlord and the respondents herein is the tenant, in respect of the petition premises on a monthly rent of Rs. 600/-. According to the landlord the tenant committed wilful default in payment of rent for a period of five months from 1-1-1981 to 31-5-1981. Admittedly no notice was sent by the landlord demanding payment of arrears of rent. According to Ex. B2 the tenant is liable to pay the rent to the landlord at the rate of Rs. 600/- per month from 1-1-1981. Ex. B6 shows that on 7-4-1981 the tenant had sent a cheque No. 203524 for a sum of Rs. 1500/- to the landlord towards the rent for the period from January 1981 to March 1981. Again, the tenant had sent the cheque bearing No. 203528 for Rs. 600/- per month from 1-1-1981. Ex. B6 shows that on 7-4-1981 the tenant had sent a cheque No. 203524 for a sum of Rs. 1500/- to the landlord towards the rent for the period from January 1981 to March 1981. Again, the tenant had sent the cheque bearing No. 203528 for Rs. 500/- to the landlord towards the rent for the month of April, 1981. On 5- 6-1981, the tenant had sent a cheque for Rs. 500/-, (the cheque No. 253676) to the landlord towards the rent for May 1981. But the landlord did not encash these cheques. The petition for eviction was filed on 12-6-1981. Till that time there is no possibility for the tenant to know that the landlord did not encash the cheques. The cheque can be encashed within a period of six months from the date of execution. Even the appellate court pointed out, the landlord had not encashed the cheques dated 7-4-81, 16-5-81, 5-6-81, 10-6-81 and 3-7-1981. Thereafter the tenant sent the rent by way of pay order and that was also refused and returned. It is only thereafter the tenant was depositing the rent in a savings bank account in the United Bank of India. In order to show this pass book was also filed. After the petition was killed on 13-4-1982, the tenant deposited a sum of Rs. 9000/- towards the arrears of rent in court. It also remains to be seen that at the time of inception of the tenancy the tenant had paid a sum of Rs. 5500/- towards advance to the landlord. In fact, the landlord can retain only one month rent by way of advance and nothing more. If the deposit is in excess of more than one month rent that amount has got to be adjusted towards the arrears of rent as per the decision of the Supreme Court, in the case of Modern Hotel, Gudur, represented by M.N. Narayanan v. K. Radhakrishnaiah and others A.I.R. 1985 Supreme Court 1510. In the above said judgment the Supreme Court while considering similar question pointed out that— “When the landlord had Rs. 5,000/- on tenants account with him as advance amount which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent. 5,000/- on tenants account with him as advance amount which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent. In view of the fact that the stipulation that the amount would be refundable atthe end of the tenancy is null and void under S. 7 (3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs. 5,000/- of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for 7. The fact remains that the tenant used to send the rent by way of cheques but they were not encashed by the landlord. The tenant came to know about this only in the month of July 1981. By that time, the petition for eviction was filed in the month of June 1981. When he came to know that the rent sent by cheques and pay order was not accepted by the landlord, the tenant deposited the same in a Savings Bank account in his own name in the United Bank of India. There is also no notice by the landlord demanding arrears of rent. In view of the above said facts, it cannot be said that the tenant has deliberately committed wilful default in payment of rent for the petition mentioned period. What is supine indifference and deliberate intention in not paying the rent came up for consideration before several courts and all the courts unanimously came to the conclusion that in a matter like this, it cannot be said that the tenant committed wilful default in payment of rent. The authorities in support of this view are as under: B. Sundaram v. V.R. Pattabiraman. A.I.R. 1985 supreme Court 582 = 98 L.W. 49 (S.C K. Mohideen Sahib v. Theodre Samuel 1985 -II MX J. 354 Rathinam Pillai v. Mohammed Kasim 1985-I-M.LJ. 194 Thaiyalnayagi Ammal and others v. Ayyema Chettiar 1976. TX.NJ. 72 T.S. Rajagopal v. M.N. Saraswathy Ammal and another 1977-11 MLJJ 8 = 90 L.W. 26 Sri Rajagopalaswami v. R. Balakrish- nan. A.I.R. 1985 supreme Court 582 = 98 L.W. 49 (S.C K. Mohideen Sahib v. Theodre Samuel 1985 -II MX J. 354 Rathinam Pillai v. Mohammed Kasim 1985-I-M.LJ. 194 Thaiyalnayagi Ammal and others v. Ayyema Chettiar 1976. TX.NJ. 72 T.S. Rajagopal v. M.N. Saraswathy Ammal and another 1977-11 MLJJ 8 = 90 L.W. 26 Sri Rajagopalaswami v. R. Balakrish- nan. 1988-J-L.W 577 Considering the facts arising in this case on this aspect, in the light of the judicial pronouncements cited supra, I hold that the Appellate Authority was correct in holding that there is no wilful default in payment of rent in this case. In that view of the matter, I am not inclined to interfere with the finding given by the Appellate Authority, on this point. 8. Another ground raised in this revision re lates to owners occupation under S. 10(3)(a)(iii) of the Act. According to the provisions of S. 10(3)(a)(iii) of the Act, if the landlord is on occupation of any other premises of his own in the city, town or village concerned, he is not entitled to an order of eviction. In the cross-examination P.W. 1 has clearly admitted that he owns another non-residential building in Coimbatore and that it is in his possession. In the cross-examination he further admitted that door No. 220, Periya Kadai Veedhi, Coimbatore, belongs to his son, Therefore, the Appellate Authority came to the conclusion that there is no bonafide on the part of the landlord in requiring the petition premises for his own use and occupation. In view of he abovesaid findings recorded by the Appellate Authority, I consider that it is not open to the landlord/petitioner herein to contend that he is entitled to an order of eviction under S. 10(3)(a)(iii) of the Act. In that view of the matter, I am not inclined to interfere with the finding given by the Appellate Authority on this point also. 9. Another ground raised in this revision re lates to requiring the petition premises bona fide for demolition and reconstruction under S. 14(1)(b) of the Act. In the petition for evictioin, the landlord made the following averments for requiring the premises under S. 14(1)(b) of the Act; “The petitioner further submits that he intends to demolish the lease hold property and put up new modern construction. The petitioner has applied to the Coimbatore Municipal Corporation for necessary licence and has obtained the same. In the petition for evictioin, the landlord made the following averments for requiring the premises under S. 14(1)(b) of the Act; “The petitioner further submits that he intends to demolish the lease hold property and put up new modern construction. The petitioner has applied to the Coimbatore Municipal Corporation for necessary licence and has obtained the same. In fact, the petitioner demolished the rear portion and has put up pucca new construction. The respondent is also aware of the demolition and reconstruction of the rear portion. As a matter of fact the registered lease deed itself provides for the respondent vacating the premises and the petitioner obtaining possession and since it was expected that the reconstruction of the portion in the occupation of the respondent would be within the stipulated period of 5 years. A provision has been made in the registered lease deed for surrender of possession by the respondent and after reconstruction the tenant occupying the reconstructed portion for the unexpired portion. Such a right of reoccupation could not enure beyond the period of lease. The bona fide claim of the petitioner for such demolition and reconstruction has been accepted by the respondent. Hence it is no longer open to the respondent to dispute the bona fide of the petitioners claim. “The petitioner submits that he has necessary funds for demolition and reconstruction. He has also applied for and obtained the necessary licence from the Municipality. The petitioner further undertakes to commence the work of demolition for the purpose of reconstruction within one month from the date of obtaining possession and complete the same within three months thereof.” 10. On this aspect the Appellate Authority following the ratio of the decision of the Supreme Court in ‘in of S. Sundaram v. V.R. Pattabhiramari A.I.R. 1985 Supreme Court 582 at p. 589, came to the conclusion that there is no bona fide on the part of the landlord in requiring the petition premises for demolition and reconstruction. It is against this order the present revision has been filed by the landlord before this court. 11. I have heard both the counsel appearing for the petitioner as well as for the respondent on this aspect. In view of the latest decision of the Supreme Court in M/s. P. Orr. It is against this order the present revision has been filed by the landlord before this court. 11. I have heard both the counsel appearing for the petitioner as well as for the respondent on this aspect. In view of the latest decision of the Supreme Court in M/s. P. Orr. & Sons (P) Ltd v. M/s Associated Publishers (Madras) Limited the 1990-2-L.W. 547 present petition for eviction filed by the landlord on the ground of demolition and reconstruction cannot survive. All the necessary ingredients for the purpose of obtaining an order under S. 14(1)(b) of the Act as pointed out by the Supreme Court in the above said decision were not brought out by the landlord in this case. Therefore, following the decision of the Supreme Court in 1990(2) Law Weekly, 547, I hold that there is no infirmity in the order passed by the Appellate Authority on this point. Accordingly, I am not inclined to interfere with the same. 12. In the result, the revision petition is dismissed. However, there will be no order as to costs.