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2000 DIGILAW 399 (MAD)

Mrs. Kasturi v. Mrs. Padma

2000-04-07

S.S.SUBRAMANI

body2000
ORDER: Tenant in R.C.O.P.No.6 of 1994, on the file of Rent Controller (District Munsif), Krishnagiri, is the revision petitioner. 2. Landlady wanted eviction of the tenant on the ground that she has committed default in payment of rent, and the default is wilful. She also wanted an order of eviction on the ground that the demised premises required demolition and reconstruction. 3. Material averments could be summarised thus: Property originally belonged to one Kanchana, and petitioner herein became a tenant under her, agreeing to pay a monthly rent of Rs.150. It is the case of the landlady that the tenant was paying rent at that rate in the beginning of the year 1990. It is her further case that she purchased the property from Kanchana as per registered sale deed dated 22.3.1990 for valuable consideration. It is said that immediately after the purchase, the fact was informed to tenant, and she was asked to attorn the tenancy. But the tenant continued to pay rent to the original landlady Kanchana for several months. Thereafter, the landlady with the help of her husband, took initiative and convened a panchayat on 18.12.1991 in which the tenant agreed to pay arrears of rent for six months, and accordingly she paid Rs.900 to the landlady and she also agreed to vacate the premises within a period of three months. An agreement was already entered on 16.12.1991 between tenant and landlady in the presence of witnesses. It is said that subsequently the tenant did not pay rent and committed wilful default. Rent from December, 1991 till date has not been paid to the landlady. At the same time, tenant initiated proceedings before Rent Controller in R.C.O.P.No.5 of 1992 alleging that latrine and bathroom were demolished by the landlady. In that case, landlady entered appearance and contested the case. According to her, she purchased that building from Kanchana without any latrine or bathroom. According to her, there were no amenities provided by Kanchana to the tenant when she was occupying the building under her. It is said that after the tenant initiated proceedings in R.C.O.P.No.5 of 1992, she did not pay rent from the month of December, 1991, in spite of repeated demands made by petitioner. According to landlady, there was supine indifference on the part of the tenant in paying rent. It is said that after the tenant initiated proceedings in R.C.O.P.No.5 of 1992, she did not pay rent from the month of December, 1991, in spite of repeated demands made by petitioner. According to landlady, there was supine indifference on the part of the tenant in paying rent. According to her, pendency of restoration of the amenities cannot be a ground for withholding the rent due to the landlady. It is also said that the condition of the building is precarious and, therefore, it requires immediate demolition and reconstruction. She has also obtained licence from the Local Authority. According to her, the claim is bona fide, and she wants an order of eviction on the above grounds. 4. A detailed counter affidavit was filed by tenant disputing the bona fides of the claim made by the landlady. According to the tenant, she came to know about the purchase of the building in question by the landlady only on 18.12.1991. The agreement dated 16.12.1991 was obtained forcibly in the Town Police Station. Even after that, she continued to pay rent to the landlady. But it was the habit of the landlady not to issue receipts. It is admitted that he initiated proceedings in R.C.O.P.No.5 of 1992 for restoration of amenities like bathroom and latrine. Rent Controller has already allowed restoration of amenities. But the landlady has failed to obey the orders, and no reconstruction of latrine and bathroom took place pursuant to the Order. Since there was lack of bathroom and latrine facilities, tenant had to take steps to execute the order, and the same is under process. It is admitted by tenant that after the Accommodation Controller passed an order directing the landlady to restore the amenities, she has not paid rent. According to her, Sec.17 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter to as ‘the Act’) provides for restoration of amenities. But the landlady failed to restore the amenities. The tenant can have the amenities restored at her cost which could be adjusted towards the rent payable. The tenant has further said that she is ready and willing to pay the arrears of rent from November, 1994 till date as and when the Court directs. According to her, she has not committed default in payment of rent. She has got to retain the rent for providing the amenities. The tenant has further said that she is ready and willing to pay the arrears of rent from November, 1994 till date as and when the Court directs. According to her, she has not committed default in payment of rent. She has got to retain the rent for providing the amenities. When he has got the intention to pay rent, the question of wilful default does not arise at all. According to her, the claim that the building requires demolition and reconstruction is not bona fide. She prayed for dismissal of the eviction petition. 5. On the above pleadings, parties went on trial. Landlady and tenant got themselves examined respectively as P.W.1 and W.1 Ex.P-1 to P-3 were marked on the side of landlady, and Ex.R-1 to R-3 were marked on the side of tenant. 6. Rent Controller held that the tenant has paid rent till September, 1994, which is admitted by the landlady herself. He further held that the tenant is entitled to withhold payment of rent when the landlady had not obeyed the Order of Court regarding restoration of amenities, and that the non-payment of rent would not amount to wilful default. Therefore, regarding claim for eviction on the ground of demolition and reconstruction, it was held that the claim of the landlady was without any bona fides. The eviction petition was dismissed. 7. Against the Order of the Rent Controller, landlady preferred R.C.A.No.9 of 1995, on the file of Rent Control Appellate Authority (Sub Judge), Krishnagiri. The Appellate Authority, on a reappreciation of the evidence, held that the tenant is liable to be evicted on the ground of wilful default in payment of rent. The claim for eviction on the ground of demolition and reconstruction was not granted, and the finding of the Rent Controller was confirmed. While disposing of the Rent Control Appeal, the Appellate Authority held that there was no evidence in this case to show that from December, 1991 till September, 1994, rent was paid. The Appellate Authority was of the view that when the parties are in strained relationship, the mere oral testimony of the tenant will not be sufficient to prove that the rent was paid. The Appellate Authority was of the view that when the parties are in strained relationship, the mere oral testimony of the tenant will not be sufficient to prove that the rent was paid. It further held that under Sec.17 of the Act, unless there is an offer to adjust the rent after incurring expenditure for restoration of amenities, tenant is not entitled to adjust the same in rent payable to the landlady. Eviction was ordered. The same is challenged under Sec.25 of the Act. 8. Notice of motion was ordered, and even though respondent has been served, no attempt was made on her side to make any representation in Court. 9. I had the opportunity of hearing only the arguments of learned counsel for petitioner herein. I have also perused the record in this case. 10. The only question that requires consideration in this revision is, whether the tenant is liable to be evicted on the ground of wilful default. 11. Before considering the facts of this case, we have to first see as to what is meant by ‘wilful default’. 12. In Sundaram Pillai v. Pattabiraman, (1985)1 S.C.C. 591 , in paragraphs 21 to 26, Their Lordships of the Honourable Supreme Court have considered this question, and it has been held thus: ".....let us find out the real meaning and content of the word ‘wilful’ or the words ‘wilful default’. In the book A Dictionary of Law by L.B. Curzon, at page 361, the words ‘Wilful’ and ‘Wilful default’ have been defined thus: ‘Wilful’- deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing. ‘Wilful default’ - Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty. In other words, ‘wilful default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Volume II-A (Permanent Edition) at Page 268, the word ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In other words, ‘wilful default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Volume II-A (Permanent Edition) at Page 268, the word ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Volume 45 of Words and Phrases, the word ‘Wilful’ has been very clearly defined thus: ‘Wilful’ - intentional; not incidental or involuntary; - done intentionally, knowing, and purposely, without justifiable excuse as distinguished from an act one carelessly; thoughtlessly; heedlessly and inadvertently; - in common parlance word ‘Wilful’ is used in sense of intentional, as distinguished from accidental or involuntary. ‘p.296 - ‘Wilful’ refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. In Volume III of Webster’s Third New International Dictionary at page 2617, the word ‘Wilful’ has been defined thus: ‘governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.‘ The word ‘default’ has been defined in Vol.1 of Webster’s Third New International Dictionary at page 590 thus: to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation. In Black’s Law Dictionary (Fourth Edn.), at page 1773, the word ‘Wilful’ has been defined thus: ‘Wilfulness’ implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice. The word ‘reckless’ as applied to negligence is the legal equivalent of ‘wilful’ or ‘wanton’. Thus, a consensus of the meaning of the words ‘wilful default’ appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the act or by other acts referred to above.“ (Italics supplied.) 13. In J.Jermons v. Aliammal and others, (1999)7 S.C.C. 382 also, a similar view was taken, though Sundaram Pillai’s case (referred to supra) was not referred to in that case. In paragraph 8, Their Lordships of the Honourable Supreme Court have held thus: (Relevant portion) ”.... a default simpliciter in payment of rent is not a ground to order eviction of the tenant because the tenant is entitled to satisfy the Court/Controller that his default in paying or tendering the rent was not wilful. If the Court/Controller is satisfied that non payment or tendering of rent was not wilful, it has to give the tenant a reasonable time which should not exceed 15 days, for payment/tendering of the rent due upto the date of such payment to the landlord and on the tenant so paying/tendering it has to reject the application seeking eviction of the tenant. But if the Court/Controller is not so satisfied, the default will be terms as “Wilful default” and the tenant will be liable to be evicted on that ground.“(Italics supplied) In the same judgment, in paragraph 7, Their Lordships have extracted Sec.10(2) (i) of the Act which says about ‘Wilful default’. 14. Before proceeding to the merits of the case. I have to consider the scope of revisional powers in a case where eviction is prayed for on the ground of wilful default in payment of rent. In a recent decision reported in Chandramohan v. Sengottaiyan, (2000)1 S.C.C. 451 in paragraph 11, it has been held thus: (Relevant Portion) ”.... The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the appellate authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional jurisdiction under Sec.25 of the Act, will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings.“(Italics Supplied) 15. From the above legal position, it is clear that whether there was wilful default in payment of rent is a mixed question of law and fact, and if the Appellate Authority has not considered the relevant materials, or it has not considered the well-settled legal position, that will be a ground for interference under Sec.25 of the Rent Control Act. 16. Landlady purchased the building only on 22.3.1990. 16. Landlady purchased the building only on 22.3.1990. It is not the case of the landlady that immediately after the purchase, the fact of purchase was informed to the tenant by registered notice. Though the landlord has stated that immediately after the purchase, it was informed to the tenant, it is denied by tenant. Finding of both the Authorities below is also in favour of the tenant. In S.K.Sattar SK. Mohd. v. Gundappa Amabadas, (1996)6 S.C.C. 373 , in paragraphs 17 to 19, (after extracting Sec.109 of the Transfer of Property Act), Their Lordships of the Honourable Supreme Court have held that the requirement of knowledge and the communication of notice regarding transfer of the part or the whole of the property in occupation of a tenant is a condition precedent for creating a liability in the tenant to pay rent to the transferee or assignee. Those paragraphs read thus: ”This Section is based on the maxim, qui in jus dominiumve alterius succeedit jure ejus uit debet, that is to say, rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property. A bare reading of the first part of the Section indicates that if the property is either transferred as a whole or any part thereof alone is transferred, the transferee comes to possess all the rights of the lessor. The proviso appended to the first part of the Section contemplates that before a tenant can be made liable to pay rent to the transferee, he must have knowledge of the transfer either through the lessor or by his transferee by a notice. Requirement of knowledge of transfer in this Section as also in Secs. 37 and 50 is based on the general principle of law set out by Willes, J. In De Nicholls v. Saunders, 22 L.T. 661: 18 W.R. 1106 that if a person fulfils his obligation without notice of the right of a third party, his obligation is treated as discharged. 37 and 50 is based on the general principle of law set out by Willes, J. In De Nicholls v. Saunders, 22 L.T. 661: 18 W.R. 1106 that if a person fulfils his obligation without notice of the right of a third party, his obligation is treated as discharged. Requirement of knowledge and the communication of notice regarding transfer of the part or the whole of the property in occupation of a tenant is a condition precedent for creating a liability in the tenant to pay rent to the transferee or the assignee of the demised premises, but it does not have the effect of postponing the assignment or transfer of property till the receipt of the notice. The title passes to the assignee immediately on the execution of the deed of transfer or assignment.“ (Italics Supplied) 17. One more circumstance in favour of the tenant is, that for months together, after 22.3.1990, tenant was paying rent to the erstwhile landlady Kanchana and she was also receiving the same without any demur. It shows that the tenant paid rent to Kanchana bona fide, and she was ignorant of the transfer. 18. It is the case of the landlady that a panchayat was convened on 18.12.1991 and the tenant agreed to vacate the premises within a period of three months, and six months rent was paid on that date, i.e., Rs.900. The Rent Controller has extracted Ex.A-1, which reads thus: According to the revision petitioner, this agreement was executed in the local Town Police Station under threat. Rent Controller has held that this document was executed only in Police Station under duress. The Appellate Authority has also taken the same view. Relevant portion of judgment reads thus: Why I am referring to this passage is, the landlady immediately after purchase, wanted to forcibly evict the tenant by adopting extra-judicial method, and the tenant was compelled to execute a deed. There was no necessity for the landlady and her husband to go to the police station and make a complaint regarding matters which are purely of civil nature. Tenant who is a lady, was threatened and forced to execute such a deed. This shows that the landlady somehow wanted to dispossess the tenant from the demised premises. 19. It is the case of the landlady that from December, 1991, no rent is paid. Tenant who is a lady, was threatened and forced to execute such a deed. This shows that the landlady somehow wanted to dispossess the tenant from the demised premises. 19. It is the case of the landlady that from December, 1991, no rent is paid. In paragraph 4 of the eviction petition, it is said thus: ”... The rent due from the month of December, 1991 till today was not paid to the petitioner. On the other hand, the respondent has initiated proceeding before this Honourable Court in R.C.O.P. No.5 of 1992 as though the latrine and bathroom alleged to have been provided to her were demolished and prayed for the restoration of the amenities." In paragraph 5, it is further said thus: "The respondent after having initiated the proceedings in R.C.O.P. No.5 of 1992 did not pay the rent for any month right from the month of December, 1991 in spite of repeated demands made by the petitioner. The respondent committed wilful default in payment of rent and she showed supine indifference. The pendency of the restoration of the amenities cannot be a ground for withholding the rent due to the petitioner. The respondent is liable to be evicted from the Schedule building premises on the ground of wilful default in payment of rents." (Italics supplied) 20. As against the said contention, tenant contended that she continued to pay rent, and only from 18.10.1994, she refused to pay rent. From December, 1991 till September, 1994, the entire rent was paid. But the landlady refused to issue any receipt. On this contention, Rent Controller has entered a finding that the landlady herself has admitted that rent till September 1994 has been paid. The reason for rendering such a finding is the admission of the landlady herself, which reads thus: (Emphasis Supplied) The statement of the landlady is that from the date of the order directing restoration of amenities, payment of rent has been suspended, and not that no rent was paid between 1991 and 1994. I have already extracted paragraph 5 of the eviction petition wherein it is said that ‘respondent after having initiated the proceedings in R.C.O.P. No.5 of 1992, did not pay rent for any month right from the month of December, 1991’. I have already extracted paragraph 5 of the eviction petition wherein it is said that ‘respondent after having initiated the proceedings in R.C.O.P. No.5 of 1992, did not pay rent for any month right from the month of December, 1991’. According to the Rent Controller, the landlady has received rent till September, 1994, and the statement in the eviction petition that there is default in payment of rent from December, 1991, cannot be believed. Taking into consideration the facts and circumstances of the case, I feel that his contention is only to be accepted, especially taking into consideration the conduct of the landlady. When she wanted to immediately dispossess the tenant through the help of police, and when she has already obtained an undertaking from the tenant that the rent will be paid as and when it becomes due, it is too much to think that the landlady would have remained silent for nearly three years. The evidence of R.W.1 was also relied on by Rent Controller to hold that rent till September, 1994 was paid. This view of the Rent Controller was not accepted by the Appellate Authority on the ground that mere oral evidence of R.W.1 is not sufficient to discharge the burden. It is true that under normal circumstances, when discharge is pleaded, Court insists on better proof. But, in this case, there are circumstance to show that the landlady would not have waited for nearly three years and allowed the tenant to commit default. It has also come out in evidence that the landlady is residing in the adjacent building, under the same roof. The strained relationship which is the reason found by the Appellate Authority to disbelieve the evidence of the tenant is equally applicable to the case of the landlady also. She would not have allowed the rent to fall in arrears for such a long period in view of the strained relationship. 21. Assuming for argument’s sake that the tenant has not paid rent, whether that will amount to wilful default, is the question to be considered. I have already held that in paragraph 5 of the eviction petition, the landlady has said that only after initiating proceedings in R.C.O.P.No.5 of 1992, tenant did not pay rent from December, 1991. Tenant was compelled to move the Rent Controller for restoration of amenities. I have already held that in paragraph 5 of the eviction petition, the landlady has said that only after initiating proceedings in R.C.O.P.No.5 of 1992, tenant did not pay rent from December, 1991. Tenant was compelled to move the Rent Controller for restoration of amenities. Bathroom and latrine which were in the enjoyment of the tenant were forcibly demolished. The contention of the landlady is that there was no bathroom or latrine at ll in the demised premises. It is too much to think that there would be a building without such basic amenities, and it is very difficult to believe that statement of the landlady, especially when the building has been let out for residential purposes. Rent Controller found that the landlady has withheld the amenities and has demolished the latrine and bathroom. Landlady has also admitted that she filed R.C.A. No.12 of 1994, and the appeal was dismissed, confirming the finding of the Rent Controller. Inspite of Orders of Court, landlady has refused to restore amenities. 22. Bathroom and latrines are amenities which are absolutely necessary for the convenient enjoyment of the residential building. The tenant is residing in that building with her family. Relevant portion of Sec.17 of the Act reads thus: "17. (1) No landlord shall, without just or sufficient cause, cut off or withhold or cause to be cut off or withheld any of the amenities enjoyed by the tenant or were in existence during the previous tenancy. (2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this Section, make an application to the Controller complaining of such contravention. (3) If the tenant satisfies the Controller that the amenities were cut off or withheld, or caused to be cut off or withheld, the Controller may pass an interim order, directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-Sec.(4). (3) If the tenant satisfies the Controller that the amenities were cut off or withheld, or caused to be cut off or withheld, the Controller may pass an interim order, directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-Sec.(4). "Explanation: An interim order may be passed under this sub-Section without giving notice to the landlord: Provided that if the amenities area not restored within seven days from the date of the interim order, the controller may permit the tenant to restore the amenities at his own cost and recover the cost of the expenses incurred by the tenant in respect of restoration of such amenities from the rent payable to the landlord in such monthly instalments as may be specified by the controller. (4) If the controller on inquiry finds that the tenant has been in enjoyment of the amenities or that the amenities were in existence during the previous tenancy and that they were cut off or withheld by the landlord without just or sufficient cause, or if the landlord was in any way responsible for the amenities being cut off or withheld, he shall make an order directing the landlord to restore such amenities." 23. The object of enacting this provision is to check the prevailing tendency on the part of landlords to resort to extra legal means to make tenants pay higher tent or and make them vacate the premises by cutting off electricity, water etc. An interference with the convenience would interfere with the proper enjoyment of the demised premises and constitutes an infringement under the Section. These provisions are meant to be additional safeguards of the tenant to his continued enjoyment of the rights created in his favour by the contract of tenancy apart from the rights under the general law. 24. In view of the concurrent findings, it has to be held that the landlady has cut off a basic amenity and tenant has been put to irreparable hardship. This was also another method by the landlady who is resorting to extra judicial method to evict the tenant. By cutting off a basic amenity, tenant will be compelled to vacate the premises and that is the intention behind such action on the part of the landlady. Inspite of orders of Court, i.e., the Rent Controller and Appellate Authority, landlady did not have the intention to restore the amenities. By cutting off a basic amenity, tenant will be compelled to vacate the premises and that is the intention behind such action on the part of the landlady. Inspite of orders of Court, i.e., the Rent Controller and Appellate Authority, landlady did not have the intention to restore the amenities. She has shown absolute indifference in restoring the amenities, and she has stuck to her stand that the tenant was not enjoying those amenities earlier. While considering the question whether the tenant is liable to be dispossessed, this attitude of the landlady also will have to be considered. I am taking the said view in view of Rule 28 (7) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, which reads thus: "The Controller or the Appellate Authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend, and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties a decision shall be given in accordance with justice, equity and good conscience by the Controller or Appellate Authority....." (Italics supplied) From the above Rule, it is to be seen whether the tenant can suspend payment of rent when the landlady has made convenient enjoyment of the premises impossible. 25. I have already extracted relevant portion of the counter statement of the tenant. She has only said that she has not paid rent only to see that the amenities are restored. She has expressed her willingness to deposit the rent if the Court so directs. It is not her case that she will not pay the rent, or that she is indifferent in paying rent. She only wants that the landlady should also discharge the obligations enjoined upon her. 26. The general law between landlord and tenant is provided under the Transfer of Property Act. Sec.108 of Transfer of Property Act deals with rights and liabilities of lessor and lessee. Clause (1) of Sec.108 of that Act says that ‘the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf. Sec.108 of Transfer of Property Act deals with rights and liabilities of lessor and lessee. Clause (1) of Sec.108 of that Act says that ‘the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf. Clause (c) of Sec.108 of that Act says that ‘the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lessee without interruption’. We have to read Sec.108 of the Transfer of Property Act along with Sec.17 of the Rent Control Act, which debars the landlady from withholding or cutting off any amenity. 27. In Surendra Nath v. Stephen Court Ltd., A.I.R. 1966 S.C. 1361, Their Lordships of the Honourable Supreme Court have considered a similar question. In that case, the tenancy was regarding three bedroom flat. Landlord put the tenant in possession of only two bedrooms, and because of this, tenant suspended payment of rent altogether. In suit for recovery of rental arrears, tenant contended that one bedroom was not given to him and, therefore, he was entitled to suspend the payment. In paragraph 7 of the judgment, Their Lordships held thus: "We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt case, 70 Ind. App. 18: A.I.R. 1943 P.C. 24, can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mechenzie, (1836)150 E.R. 635, should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject-matter of the lease in (1836)150 E.R. 635 was a dwelling house and land attached to it, and it was 8 acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion the doctrine laid down in (1836)150 E.R. 635, is too inflexible and cannot be applied to all cases. Be that as it may, in our opinion the doctrine laid down in (1836)150 E.R. 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding all cases. On the one hand, it does not seem equitable that when a tenants enjoys a substantial portion of the property of the landlord leased to him without much inconvenience, he should not pay any compensation for the use of the property. In other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand, it is unfair that if a tenant is not given possession of a substantial portion of the property he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case, we are of the opinion that the tenant is not entitled to suspend the payment of rent, but he must pay a proportionate part of the rent.“ (Italics supplied) From the above position, it is clear that if a tenant is put to inconvenience because of the acts of the landlord in the enjoyment of the leased premises, that will be a ground for suspension of payment of rent. 28. In Ahmed Maracair v. Muthuvalliappa, A.I.R. 1961 Mad. 28, a learned Judge of this Court has held thus (in paragraph 8): “When there is sufficient interruption - substantial interference - it need not be physical dispossession - to the quiet enjoyment of the lessee of the demised land under the lessor assured to the lessee under Sec.108(c), the lessee can plead that his obligation to pay rent or balance of rent due to the lessor be held under suspension or must be held to have abated by reason of the conduct of the lessor”. That is a case where the landlord collected rent from sub-tenants, which he was not entitled to. That is a case where the landlord collected rent from sub-tenants, which he was not entitled to. When the landlord could not collect the entire rent from the sub-tenants, he wanted the tenant to pay the rent. Tenant objected to the same contending that by collecting rent from other tenants, landlord has interfered with his right of enjoyment. In those circumstances, the learned Judge took the above view. Thereafter, in paragraph 10, the learned Judge has further held thus: “.... it is but right and proper that the lessor should be made to bear the consequences brought about by his own unauthorised and high-handed action of collecting the rents from the sub-tenants and if he is not able to collect the entire rents from them, he should thank himself for it, and cannot look to the lessee to make good the uncollected portion.....” 29. In Dwijendra v. Aftabuddi, A.I.R. 1917 Cal. 177, a portion of the demised premises was taken possession of by the landlord. Rent was fixed for the entire premises as one lot. Tenant did not pay rent in respect of that portion of the property which continued in his possession. The question was, whether the tenant is liable to pay rent, or he is entitled to suspend payment. In that case, a Division Bench of the Calcutta High Court held that ‘no question of apportionment arises where there has been a partial eviction by the landlord, as the entire rent is suspended.‘ 30. In the decision of the Honourable Supreme Court in Surendra Nath v. Stephen Court Ltd., A.I.R. 1966 S.C. 1361 also, the Court directed fixation of proportionate rent and remanded the case. 31. In another Division Bench judgment of the Calcutta High Court reported in Krishna Chandra v. Surendra Nath, A.I.R. 1932 Cal. 385, landlord dispossessed the tenant from a portion of the tenure, and the landlord sued for recovery of rent. Tenant contended that unless possession is restored in respect of the entire premises, he is not liable to pay rent, and that he is entitled to suspend the payment of rent. This question was considered at page 387 of the Reports and it was held thus: ”....If a landlord by force or otherwise keeps the tenant out of possession of a portion of a holding, he thereby forces the tenant to accept the tenancy different from what he originally stipulated for. This question was considered at page 387 of the Reports and it was held thus: ”....If a landlord by force or otherwise keeps the tenant out of possession of a portion of a holding, he thereby forces the tenant to accept the tenancy different from what he originally stipulated for. Moreover, it will create a new tenancy against the will of the tenant. I do not think that any Court of justice should encourage the landlord to dispossess the tenant and by keeping him out of possession for some time succeed in creating a different tenancy. There is nothing to prevent the tenant profiting by the tortious act of the landlord and holding the portion left to him without payment of rent. If the rent is suspended under the law, it is suspended not for a particular period but until the tenant is restored to possession of the original tenure....“(Italics supplied) 32. In Nishi Kanta Sarkar v. Sir David Ezra and another, A.I.R. 1936 Cal. 135 also, a similar question arose for consideration. Learned Judge who decided that case, followed the English principles of law, which have been extracted at pages 137 and 138 of the Reports: “....The principles which have to be considered in deciding what constitutes eviction so as to justify suspension were laid down in England so long ago as 1855, in the well-known case of Upton v. Townend, 17 C.B. 30(1). Jervis, C.J., after dealing with the derivation of the word “eviction” says at p.64 of the Report: ‘It is now well settled that, if the tenant loses the benefit of the enjoyment of any portion of the demised premises, by the act of the landlord, the rent is thereby suspended. The term “eviction” is now popularly applied to every class of expulsion or amotion. Getting rid thus of the old notion of eviction, I think it may now be taken to mean this; not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.‘ Williams, J., at p.68 says: ‘There clearly are some acts of interference by the landlord with the tenant’s enjoyment of the premises which do not amount to an eviction but which may be either mere acts of trespass or eviction according to the intention with which they are done. If those acts amount to a clear indication of intention on the landlord’s part that the tenant shall no longer continue to hold the premises, they would constitute an eviction’. (Italics supplied) And Crowder, J., says much the same thing at p.71. ‘Although, therefore, I agree that it is not every act of trespass by a landlord that will amount to an eviction, I think in both cases the tenant has been substantially and permanently deprived of the subject matter of the demand, so as to entitle him to say that he has not had the occupation of that which he was entitled to.‘ and Willer, J. at p.75; ‘In both cases, therefore, as it seems to me, the tenant was, by an act of the landlord, which was intended to be, and was, of a permanent character, deprived of the perfect and convenient use of the thing demised. ......” 33. In N.Basu v. Nilima, A.I.R. 1975 Cal. 418, a learned Judge of that High Court has considered the circumstances under which payment of rent could be suspended. Paragraph 15 of the judgment reads thus: ”In view of the decision above on the question of suspension of rent, it cannot be held that only in case of dispossession of the tenant from a portion of tenancy by landlord by physical force, such tenant can get advantage of suspension of rent. The principle is that in a case where the landlord dispossesses his tenant from any portion of the leased property by exercising physical force, coercion, threat or any other trick or means or any fraudulent or mala fide process against the wish or will or natural inclination of the latter or where the landlord connives with or assists others directly or indirectly to dispossess the tenant or does something which is responsible for the dispossession of the tenant from any portion of the tenancy or by his acts or omission leads the tenant to part with possession of any portion of the property in lease against his will or consent or depriving him of the benefit or use of such property, the tenant so dispossessed shall be entitled to suspension of the entire rent if he so likes so long as he does not get back the portion from which he is dispossessed......" (Italics supplied) 34. In M/s.Apparel Trends v. Krishna Dandona, A.I.R. 1985 Delhi 106, it was held that ‘the principles governing the "suspension of rent" are based on justice, equity and good conscience. It depends on the facts of each case, whether a tenant is entitled to the suspension of rent’. In that case, the tenant deliberately stopped payment of rent. Landlord disconnected electric supply. Three years after such disconnection, tenant raised a contention that he was not liable to pay rent on that ground. Taking into consideration the above facts, a learned Judge of that High Court held that the principle of justice, equity and good conscience will not apply to the facts of that case. 35. It is clear from the above principles that the tenant will be justified in suspending payment of rent, if the landlord has done some act which has materially affected the convenient enjoyment of the property, and if the intention of the landlord is to compel the tenant to vacate the premises. 36. Even though Rent Control Act is a codified law, so far as the relationship between landlord and tenant is concerned, the Codification is only with regard to those matters which are provided under the Act. Again, when Rule 28(7) of the Rules framed under the Rent Control Act says that decision shall be given in accordance with justice, equity and good conscience, those principles apply to this case also. 37. The further question that arises for consideration is, whether Sec.17(4) of the Rent Control Act will bar the tenant from pleading suspension of payment of rent. If the landlady refuses to restore the amenities, the Accommodation Controller can pass an order directing the tenant to restore the amenities, and the cost incurred shall be adjusted in the rent payable. It has nothing to do with the suspension of payment of rent. As held in all the decisions cited supra, once the amenities are restored, the tenant become liable to pay the entire rent. Suspension of payment of rent remains only for the period during which the amenities are not restored. It is not a non-payment of rent, much less wilful default in payment of rent. The tenant has also stated in her counter that she is not paying the rent only to compel the landlady to restore the amenities, and that she is willing to pay the same once the amenities are restored. 38. It is not a non-payment of rent, much less wilful default in payment of rent. The tenant has also stated in her counter that she is not paying the rent only to compel the landlady to restore the amenities, and that she is willing to pay the same once the amenities are restored. 38. While considering the scope of wilful default as a ground for eviction, it is the misconduct of the tenant that forfeits the right of the tenant to occupy. If the non-payment of rent is due to the conduct of the landlady, it cannot be termed as ‘Wilful default’. Under the Rent Control law and the Transfer of Property Act, both the parties are bound to mutually respect their statutory and contractual obligations. If the landlord/landlady is allowed to get possession of the building inspite of his/her misconduct or unauthorised acts on the ground that the tenant has committed wilful default, that will amount to giving a premium for his/her illegal acts. As stated earlier, the decisions of the Rent Controller and also the Appellate Authority should be based on justice, equity and good conscience. If that principle could be applied, in the case on hand the landlady will not be entitled to get possession of the building. 39. In the result, the decision of the Appellate Authority is set aside, and that of the Rent Controller is restored. The Revision Petition is allowed. No costs. C.M.P.No.8538 of 1999 for stay is closed.