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2000 DIGILAW 572 (MAD)

Manickkampillai v. A. Sakuntala

2000-06-18

K.P.SIVASUBRAMANIAM

body2000
Judgment :- 1. This revision is directed against the order of the Rent Control Appellate Authority, Tiruchy, b R.CA. No. 26 of 1993 confirming the order of the Rent Controller, Tiruchy, in R.CO.P. No. 156 of 1987. The tenant is the revision petitioner. 2. Eviction was sought for on the grounds of wilful default and for demolition and reconstruction. 3. The landlord contended that he is the owner of the property and that in respect of the petition property, the tenant had agreed to pay Rs. 175/- as rent per month from the Tamil month of Thai’ (January), 1986. The previous rent was in vogue for many years and tenant knew very well that the other tenants in the other houses were paying enhanced rent. The premises in the occupation of the tenant was an independent house. When the landlords agent approached the tenant taking advantage of the absence of t he acceptance of the rent at Rs. 175/- per month in writing, he resiled and refused to pay the said amount and the agent complained and reported the matter to the landlord. Since the tenant did not pay the agreed rent, landlord issued a notice on 173.1986 by registered post. The tenant has given a reply dated 20.3.1986 containing false and frivolous allegations. The contention that the rent was only Rs. 100/- from January, 1986 was not correct. The default was therefore wilful and due to supine indifference and hence the tenant was liable to be evicted. The Money Order were refused since the amount did not represent the agreed rent. A sum of Rs. 2,625/- was standing as arrears. The landlord further contended that the petition premises was bona fide required for demolition and reconstruction so as to augment income. The desire of the petitioner to put up new construction was true and the need is genuine. On that ground also, the tenant was liable to be evicted. The landlord also gave statutory undertaking to commence the work of demolition not later than one month after he recovers possession. 4. In the counter filed by the tenant, it was stated that the rent was only Rs. 100/- per month and not Rs. 175/- from the Tamil Month of ‘Thai’ 1986. The contention that the landlords agent came to collect the rent and the tenant refused to pay the enhanced rent, is not correct. 4. In the counter filed by the tenant, it was stated that the rent was only Rs. 100/- per month and not Rs. 175/- from the Tamil Month of ‘Thai’ 1986. The contention that the landlords agent came to collect the rent and the tenant refused to pay the enhanced rent, is not correct. The tenant met the petitioner in person and tendered the rent due for the months of ‘Thai’ and ‘Masi’ and the landlord refused to receive the rent. Therefore, he had sent the rent for the month of ‘Thai’ by Money Order which was refused. Similarly, the rent for the next month also was sent by Money Order and therefore, there was no default in the payment of rent. The tenant also required the landlord to specify the name of the Bank where the rents can be deposited. In the mean time, the petitioner had filed the present petition for eviction. Therefore, there was no arrears of rent and the tenant has not defaulted in payment of rent. The further claim of the landlord that the petition building requires demolition and reconstruction is denied by the tenant. There was no such honest desire on the part of the landlord. The building does not require immediate demolition. The idea of the landlord is to evict the tenant and let out the premises to some other person for higher rent. 5. Both the Rent Controller and the Appellate Authority concurrently found that the old rent was Rs. 100/- per month and the tenant had not paid the revised rent as demanded by the landlord and that the landlord bona fide requires the building for demolition and reconstruction. Hence, the above revision by the tenant. 6. Mr. R. Sundar Rajan, learned counsel appearing for the tenant raises the following points for consideration: — (a) From the petition as well as the findings rendered by the both the Courts below, it would show that the agreed rent was not Rs. 175/- per month and that it was only Rs. 100/per month. The findings of the Courts below is to the effect that the landlord had demanded at the rate of Rs. 175/-per month, hence the tenant did not agree for the revised rent. 175/- per month and that it was only Rs. 100/per month. The findings of the Courts below is to the effect that the landlord had demanded at the rate of Rs. 175/-per month, hence the tenant did not agree for the revised rent. Then the only course open to the landlord was to file a petition for flaxation of rent and non payment of the enhanced rent will not amount to wilful default. Wilful default would necessarily requires mens rea and in case of the tenant refusing to pay the enhanced rent, there is no question of any wilful default. (b) The period of default had not been specified in the petition. Nor is there any averment as to when exactly the increase in rent become effective. (c) The totality of the circumstances should be taken into account and considering that there was dispute over the quantum of rent, the benefit should be given to the tenant. (d) As regards the demolition and reconstruction there was no proper pleading and finding that the building was old and dilapidated. The finding in the said context, was neither supported by the pleadings nor by any evidence. No amount of evidence can be let into in the present case in the absence of pleadings. (e) The condition of the building is one of the necessary ingredients and in the absence of the pleadings and the evidence, the finding rendered by the Courts below are liable to be set aside. There is absolutely no pleading or evidence relating to conditions of the building and hence, the finding to the effect that the building was in a bad condition was liable to be set aside. 7. Mr. Raja Kalifullah appearing for the respondents/landlord contends that the conduct of the tenant clearly discloses the wilful nature of the default. Both the Courts below have concurrently found that the monthly rent was Rs. 175/- and not Rs. 100/-. Though the notice was sent on 173.1986, petition for eviction was filed only on 23.04.1987. There was no attempt on the part of the tenant either to pay the rent or to take steps under the Tamil Nadu Buildings (Lease and Rent Control) Act, for fixation of fair rent. 175/- and not Rs. 100/-. Though the notice was sent on 173.1986, petition for eviction was filed only on 23.04.1987. There was no attempt on the part of the tenant either to pay the rent or to take steps under the Tamil Nadu Buildings (Lease and Rent Control) Act, for fixation of fair rent. The landlord had refused to receive the money order since the amount sent by the tenant did not represent the correct amount and the tenant ought to have taken steps to deposit the amount at least into Court. As regards the requirement for demolition and reconstruction of the petition building, the landlord positively pleaded that he wants to augment his income. The condition of the building was also very heavily damaged and even otherwise, the condition of the building was only one of the relevant circumstances and it has been repeatedly held that it was not necessary that a building should be in a dilapidated condition. If the landlord had adequate source, he is entitled to take steps as may be necessary to augment better income and the landlord cannot be deprived of his rights to do so. The decisions by the Courts below are concurrent findings and therefore, no interference was called for at the revisional stage. 8. I would first deal with the issue relating to the default and Mr. Sunder Rajan had relied on the following rulings in support of his submission on the said issue. In R. Lakshmi v. G. Venkataswamy Naidu (1974) (87 L.W. J.S.P. 87), Ramaprasada Rao, J. as he then was, held that an element of mens rea should be present while trying, to find out whether the tenant was supinely indifferent and had committed wilful default. 9. In Venkataramanasami Ayyar v. Abdul Wahab (No. 2) ( 1969 (I) M.L.J. 137 = 82 L.W. 42) M. Natesan, J. held that when there was bona fide dispute relating to the payment of enhanced rent, the court has to find out whether the default was intentional. 10. In Purandara Vittal v. Radhabai ( 1998 (I) C.T.C. 531 = 1998 2 L.W. 66) R. Balasubramanian, J. held that in a case where the landlord demands increased rent and the tenant was paying only agreed rent, the said issue had to be taken into account for considering whether the default was wilful or not. 10. In Purandara Vittal v. Radhabai ( 1998 (I) C.T.C. 531 = 1998 2 L.W. 66) R. Balasubramanian, J. held that in a case where the landlord demands increased rent and the tenant was paying only agreed rent, the said issue had to be taken into account for considering whether the default was wilful or not. Reference was made to one of my judgments in Hamid Sultan V.S. v. Abdul Latheef ( 2000 (I) C.T.C. 137 = 2001 1 L.W. 462) in support of his contention that where the landlord refused to receive the rent, there is no obligation on the part of the tenant to invoke the eviction under Section 8 of the Act. 11. Reference is made to the judgment of the Supreme Court in Chandramohan, C. v. Sengottaiyan (Dead) (SC) (2000 (I) C.T.C. 239 = 2000 2 L.W. 630) in support of his submission that the eviction petition should contain a specific averment regarding the actual period of default. 12. Mr. Kalifulla, learned counsel for the respondents relied on the judgment of the Supreme Court in Hanuman Prasad v. III Addl. District Judge & Ors. (Vol. 7 (2000) Supreme Laws Today, 12). In that case, there was a controversy as to what was the actual rent and the Courts below having found that the rent was only Rs. 51/- and not Rs. 65/- the Supreme Court held that there was no reason to interfere with the concurrent finding of facts. 13. I have considered the submissions on both sides. It is true that to hold the tenant guilty of default, it should be shown that the default was intentional and deliberate and due to supine indifference. I also agree that an element of mens rea to commit default should also be there. Mensrea is the essential ingredient of any action which could be termed as deliberate or intentional. In the present case, the positive contention of the landlord is that he had increased the rent to Rs. 175/- per month’ from the Tamil month of ‘Thai’ 1986 (January, 1986). The mention of the year as 1983 in the oral evidence of the landlord appears to be a typographical error considering his consistent stand in the legal notice, as well as the petition itself. He has given the amount of arrears correctly as Rs. 175/- per month’ from the Tamil month of ‘Thai’ 1986 (January, 1986). The mention of the year as 1983 in the oral evidence of the landlord appears to be a typographical error considering his consistent stand in the legal notice, as well as the petition itself. He has given the amount of arrears correctly as Rs. 2625/- as on the date of the petition, namely for 15 months from January, 1986 to end of March, 1987. R.C.O.P. had been filed on 23.4.1987. In the oral evidence also he has stated that the amount of arrears was Rs. 2625/-. Therefore, the mention of the year as 1983 in the oral evidence is obviously a typing mistake, and requires to be ignored. 14. It is also true that the period of default should be properly mentioned in the petition. But having regard to the nature of the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, the Courts cannot adopt a hyper technical approach and we have to see whether necessary facts have been brought out in the pleadings and the evidence. In the petition, the commencement period of default had clearly been stated as January, 1986. The monthly rent has been stated as Rs. 175/- per month and that as on the date a sum of Rs. 2,625/- was outstanding as arrears and the petition had been filed on April, 1987. This has been substantiated by oral evidence also. Therefore, the mere failure to state that the period of default was from so and so date and up to the date of the petition, cannot result in rejecting the petition. The tenant also had understood the quantum and period of arrears and in the counter he has pleaded that the entire arrears had been paid on the first date of hearing and that there was no arrears of rent. Therefore, no prejudice can be alleged to have resulted and hence I am unable to uphold the said contention. 15. Now coming to the element of default, the landlord had demanded enhanced rent from January, 1986 as could be seen from the lawyers notice and there is no controversy over the said issue. The tenant sent the agreed rent amount of Rs. 100/- for two months by Money Order, both of which were refused by the landlord. Thereafter the tenant keeps quiet and the eviction petition was filed on 21.4.1987. The tenant sent the agreed rent amount of Rs. 100/- for two months by Money Order, both of which were refused by the landlord. Thereafter the tenant keeps quiet and the eviction petition was filed on 21.4.1987. Apart from the fact that both the Courts have concurrently held as question of fact that the monthly rent as agreed between the parties was only Rs. 175/-. I have independently considered the issue in an angle more advantageous to the tenant namely, by even assuming that the agreed rent was only Rs. 100/- and that the tenant had not agreed for the proposal of the landlord to increase the rent to Rs. 175/- from January, 1986. Even so, I am inclined to hold that the tenant is in default. The landlord has the inherent right to increase the rate of rent periodically and it is up to the tenant to accept or not to accept the proposal. If the increased demand is not agreeable to the tenant, two options are open to him, namely, to file a petition for fixation of fair rent and or to take steps to deposit the rent in Court. In this case, though the demand for Rs. 175/- per month had been made in January, 1986 and the tenant claims that he had requested the landlord to name the Bank for depositing the rent, the feet remains that thereafter he did nothing till April, 1987 for 15 months when the R.C.O.P. was filed 16. Though the right to file a petition for fixation of fair rent is available to both the landlord and the tenant, it is but reasonable to hold that if the landlord demanded for increased rent and the same was not acceptable to the tenant, it is the tenant who should move the Court for fixation of fair rent at the earliest. The tenancy does not depend only on the terms of the lease being reduced in writing and hence the landlord is not precluded from stipulating higher rent either orally or by notice. It is therefore, the duty of the tenant to approach the Court immediately for fixation of fair rent. In Rajinder Kumar Joshi v. Veena Rani (1990 (4) S.C.C., 526), the Supreme Court held that it is for the tenant to get the fair rent fixed or determined or to tender the amount as demanded by the landlord. It is therefore, the duty of the tenant to approach the Court immediately for fixation of fair rent. In Rajinder Kumar Joshi v. Veena Rani (1990 (4) S.C.C., 526), the Supreme Court held that it is for the tenant to get the fair rent fixed or determined or to tender the amount as demanded by the landlord. It is true that the said judgment was rendered in the context of the provisions of the East Punjab Urban Rent Restriction Act, 1949 in which the expression “rent as demanded by the tenant” had been used. But at least for three reasons the same reasoning of the Supreme Court should apply for the Tamil Nadu Act also. Firstly, on general principles, it is the right of the landlord to stipulate increase in rent and it is also the right of the tenant to refuse to pay the increased rent if the demand appears to him to be unreasonable. If the increased demand is not acceptable, then either the tenant has to vacate the premises or has to file a petition for fixation of fair rent or to deposit the admitted rent in Court in terms of Section 8 of the Act. Secondly, in Tamil Nadu Act, in Section 10(2) (i) of the Act the conduct of the tenant is treated as default in payment of rent if “the tenant had not paid or tendered the rent due by him.’ 17. Though the expression “due by him” should normally refer to the agreed rent, the provisions of the Act do not preclude the right of the landlord to demand increase in rent and in fact it is his inherent right to demand higher rent in course of time. The Explanation to the said provision also enables the tenant to make up his mind as to whether he is agreeable to pay the enhanced rent or not and a period of two months time is given to him if demand is not agreeable to him, he should immediately approach the Court for appropriate relief as mentioned above. He cannot sleep over the matter endlessly and happily without paying even the admitted rent for 15 months. 18. It would be a different matter if the landlord had approached the Court in a very hasty or hurried manner within a month or two after demanding higher rent and complaining default. He cannot sleep over the matter endlessly and happily without paying even the admitted rent for 15 months. 18. It would be a different matter if the landlord had approached the Court in a very hasty or hurried manner within a month or two after demanding higher rent and complaining default. In this case, the landlord had waited for 15 months which is more than enough during which period the tenant would not take any further steps nor even pay the admitted rent. 19. Refusal on the part of the landlord to receive the old rent is not an excuse for the tenant for not paying even the admitted rent. It is true that payment of admitted rent for two months was refused by the landlord. The tenant claims to have demanded naming of the Bank for deposit of rent, but never followed it up by any concrete steps. It is also true that I have held in 2000 (1) C.T.C. 137 = 2001 1 L.W. 462, cited above, to the effect that mere failure of complying with Section 8 of the Act will not be a conclusive circumstance to prove the default in a case where the landlord refuses to receive the rent. But the said judgment cannot come to the rescue of the tenant in this case. Firstly, this is not a case of refusal by the landlord to receive the rent actually payable to the premises. He has demanded increase in rent and if the tenant does not agree for the increase, the landlord is not obliged to receive the old rent. Otherwise, acceptance of the old rent would operate against him as estoppel. Secondly, in that judgment, I have clearly stated that the failure to invoke Section 8(5) of the Act would be definitely one of the relevant circumstances to decide the question of default, but not the only conclusive circumstance, in a case where the landlord had refused to receive the rent. Thirdly, on the facts of that case, for the succeeding months also the tenant went on sending Money Orders for each month which the landlord refused to receive till the filing of the eviction petition. In the present case, barring the first two months, the tenant failed to pay the rent for the succeeding 13 months. Admittedly, no steps were also taken to have the fair rent fixed for the premises. In the present case, barring the first two months, the tenant failed to pay the rent for the succeeding 13 months. Admittedly, no steps were also taken to have the fair rent fixed for the premises. Therefore, the conduct of the tenant in the present case amounted to a deliberate default arising out of supine indifference and intention not to pay the rent. I have therefore, no reason to interfere with the concurrent findings rendered by both the Courts below as regards default. 20. One other issue, which was raised in the context of default is that the tenant had deposited the entire arrears before the first hearing of the petition and hence according to Mr. Sunder Rajan, the revision petition deserves to be allowed. On this issue, the reliance is placed on the following judgments: (1) Abdul Hameed v. M. Sultan Abdul Kader ( 1996 (2) L.W. 525 ) (2) Chordia Authomobiles v. S. Moosa (2000 (I) C.T.C. 742 = 2001 1 L.W. 737) (Supreme Court). 21. I have already dealt with the said issue in detail and held that the provision of the Tamil Nadu Act does not visualise any such situation which would absolve the tenants conduct of default, vide the order in K.S. Pandian v. Rukmani Bai (C.R.P No. 1549 of 1996 dated 22.9.2000 = 2001 1 L.W. 801). My view is also supported by K. Govindarajan, J. in Easwara Rao v. Ansari (1996 (1) M.LJ. 401) and R. Balasubramanian, J. in The Nilgiris Co-operative Marketing Society v. Uthandi ( 1998 (II) M.LJ. 745 = 1998 2 L.W. 216). 22. As regards the demand for demolition and reconstruction is concerned, I agree that in the petition there is no specific pleading to the effect that the building was in an unusable or dilapidated condition. Therefore, The finding of the Courts below that the building was in a dilapidated condition, cannot be sustained. But at the same time, if the order can be sustained on other reasons, there would be no reason to interfere with the ultimate order of eviction. 23. There is no doubt over the fact that the building was fairly old. The tenant himself claims to be in occupation for more than 30 years when he gave evidence in 1993. Therefore, the building should be fairly old requiring modification for better use and for exploitation for better income. 23. There is no doubt over the fact that the building was fairly old. The tenant himself claims to be in occupation for more than 30 years when he gave evidence in 1993. Therefore, the building should be fairly old requiring modification for better use and for exploitation for better income. The landlord had positively stated in the petition and the evidence that he requires the building for augmenting better income and that his need to put up new construction was true and genuine. Both the Courts have considered his evidence and have concurrently accepted the bona fides of the demand. 24. It is settled proposition of law that in order to seek eviction on the ground of demolition and reconstruction the building need not be in shambles or totally dilapidated. The economic advantages which the landlord was bound to derive if the building could be reconstructed or restructured, that should be sufficient. There are several other factors which have to be considered such as location of the property, commercial advantage of reconstructing the building etc. 25. As early as in 1966 in Chandrasekara v. Chettys Charities (A.I.R. 1966 Madras 14 = (1965) 78 L.W. 326 ), Venkatadri, J. held that the Act nowhere shows that the owner would be entitled to pull down a building only when it was hopelessly old and that then only he can build a new structure thereon. If it was so, it would mean that the owners of substantial buildings cannot be allowed to erect new buildings with modern requirements and to develop their property fully. The same view was held by other learned Judges of this Court as follows: — (i) Lakshmanan v. Kannianunal alias Pattammal (1995 (I) M.L.J. 178 = 1995 1 L.W. 632). (ii) S. Thangaswamy v. Vinayakamurthy (1996 (11) M.LJ. 322 = 1996 2 L.W. 534). (iii) M.S. Sulochana v. Rathinasabapathi Mudaliar ( 1996 (II) M.LJ. 538 ). (iv) M.M Jaffar & Co., Coimbatore v. Coimbatore Bearing Stores ( 1998 (III) M.L.J. 741 ). 26. I respectfully agree with the views expressed in the above judgments. The landlord is the best person who is entitled to decide as to how best he should make use of his property to his advantage. 538 ). (iv) M.M Jaffar & Co., Coimbatore v. Coimbatore Bearing Stores ( 1998 (III) M.L.J. 741 ). 26. I respectfully agree with the views expressed in the above judgments. The landlord is the best person who is entitled to decide as to how best he should make use of his property to his advantage. The landlord, in the present case, had given the statutory undertaking as required by him so as to be entitled to an order of eviction on the ground of demolition and reconstruction and I have no reason to interfere with the findings of the Courts below. 27. Both learned counsel had cited rulings in the context of scope of interference by which Court in a revision under Act 18 of 1960. Considering my conclusions as above, there is no necessity to deal with the said question. 28. Therefore, I do not find any ground to interfere with the order of eviction passed by the Courts below. The Civil Revision Petition is dismissed. No costs.