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2000 DIGILAW 595 (MAD)

Sivappa Chettiar v. Vaidyalinga Chettiar

2000-06-23

P.SATHASIVAM

body2000
Judgment : 1. Unsuccessful tenant who lost before both the Authorities is the revision petitioner. The respondent/landlord filed R.C.O.P.No.12 of 1991 before the Rent Controller for eviction of petitioner/tenant under Sec.10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The Rent Controller ordered eviction which was confirmed by the appellate authority, hence the present revision. 2. The respondent herein is the landlord of the building in question. The monthly rent is Rs.450. For non-payment of rent from March, 1990 to August, 1991, the tenant has not paid the rent. Since the tenant failed to pay the rent periodically and even after filing of petition under Sec.8(5) of the said Act to deposit the rent in court, the respondent-landlord had filed eviction petition on the ground of non-payment of rent under Sec.10(2)(1) of the said Act. The contention of the landlord that the tenant was in arrears of rent and failed to deposit the same, particularly for the period November, 1990 to August, 1991, the Rent Controller accepted the landlords case and ordered eviction of the same has been confirmed by the appellate authority. 3. Heard the learned counsel for the petitioner as well as respondent. 4. The only point for consideration is whether the tenant had committed default under Sec.10(2)(1) of Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as “the Act”) and the conclusion arrived at by both the Authorities is right. 5. There is no dispute regarding the relationship of landlord and tenant and the monthly rent is Rs.450. It is a non- residential one. It is the definite case of the landlord that the petitioner-tenant failed to pay monthly rents regularly and even after filing petition under Sec.8(5) of the Act and after order of the Rent Controller, did not deposit the rent for the period November, 1990 to August, 1991. On the other hand, it is the case of the tenant that since the respondent-landlord refused to receive rent, he sent the rent by way of money order and the same was also returned on many occasions. Despite the request of the tenant to; name the Bank in order to deposit the amount, according to the tenant, he has not received any reply from the landlord. Despite the request of the tenant to; name the Bank in order to deposit the amount, according to the tenant, he has not received any reply from the landlord. In such a circumstance, he filed M.P.No.24 of 1990 before the Rent Controller under Sec.8(5) of the Act seeking permission of the court to deposit rents in court. The said aspect has not been disputed. As a matter of fact, the respondent-landlord filed a counter affidavit opposing the said application. At the relevant point of time, the said petition namely M.P.No.24 of 1990 was pending before the Rent Controller. It is also clear from the proceedings that after filing of the said petition, the tenant has filed lodgment schedule in order to deposit monthly rents. It is further clear that in the light of the objection filed by the respondent in M.P.No.24 of 1990, it is stated by the tenant that he was waiting for the order/permission to deposit the rents in court. 6. It is also clear from the proceedings that for the reasons best known to the landlord, he did not receive monthly rent whenever the tenant has made an offer. It is also seen from the evidence that after bitter experience, the tenant had sent arrears of monthly rents by way of money orders. Several money orders have been returned since the landlord refused to receive the same. Thereafter, the petitioner-tenant filed necessary application under Sec.8(5) of the Act seeking permission to deposit the rent before the Rent Controller. The said application was filed on 111. 1990. Ex.R-2 is the petition filed under Sec.8(5). No doubt, the application filed by the landlord to withdraw the amount had been returned for want of funds. It is seen from the proceedings that along with the said application, namely, M.P.No.24 of 1990, the tenant has also filed lodgment schedule under Ex.R-3 seeking permission to deposit a sum of Rs.380 towards rent for the period March, 1990 to October, 1990. Ex. R-4 counter-foil shows that the Rent Controller has issued necessary lodgment schedule and based on that, the tenant has deposited arrears of Rs.380 on 10. 1991. Ex. R-4 counter-foil shows that the Rent Controller has issued necessary lodgment schedule and based on that, the tenant has deposited arrears of Rs.380 on 10. 1991. Considering all the above aspects and also of the fact that at the initial stage the landlord had refused to receive rent sent through money order and in view of the deposit made by the tenant pursuant to the orders, the Rent Controller himself has observed that, It is clear that the tenant has deposited all the rents upto October, 1990 after getting necessary lodgment schedule and the same has been accepted by both the courts below. However, the Rent Controller and appellate authority have concluded that from November, 1990 till August, 1991 the tenant had not deposited that amount in time and only on 7. 1992 he deposited the arrears in one lump sum. This according to them, is contrary to Sec.10(2) (1) of the Act. The said conclusion of both the authorities cannot be sustained for the following reasons. It is useful to refer the relevant provisions for just and proper appreciation of the case of both the parties: (2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. The said conclusion of both the authorities cannot be sustained for the following reasons. It is useful to refer the relevant provisions for just and proper appreciation of the case of both the parties: (2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- .(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or .(ii) x x x Sec.10: Eviction of tenants: (1) x x x (iii) x x x Provided that in any case falling under clause (i) if the Controller is satisfied that the tenants default to pay or tender rent was not wilful, he may, notwithstanding anything contained in Sec.11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected.” I have already mentioned that the landlord had refused to receive rents sent through money order which necessitated the tenant to file a petition under Sec.8(5) of the Act and obtain permission undoubtedly the tenant has to deposit the amount each month without delay. However, learned counsel for the petitioner has brought to my notice that it was only due to the delay in passing orders by the Rent Controller and not due to the default of the tenant. A perusal of the entire proceedings shows the attitude of the landlord in refusing to accept money orders and his objection to the petition filed under Sec.8(5) of the Act. Even for the period from November, 1990 to August, 1991, the tenant had deposited the entire amount in one lump-sum on 7. 1992. Even though he has not deposited the amount every month the fact remains that without the permission of the court, he cannot deposit the amount into the court. Even for the period from November, 1990 to August, 1991, the tenant had deposited the entire amount in one lump-sum on 7. 1992. Even though he has not deposited the amount every month the fact remains that without the permission of the court, he cannot deposit the amount into the court. In other words, the tenant has to get a lodgment schedule bill authenticated by the Rent Controller. In such circumstances, as per proviso to Sec.10(2) of the Act, the Controller has to find out whether the tenants default to pay or tender rent was wilful or not. Absolutely there is no finding to the effect that the tenant had committed wilful default. The Appellate Authority has also committed the same mistake. Hence I am of the view that both the authorities failed to consider the proviso adumbrated in Sub-sec.(2) of Sec.10 of the Act. 7. Learned counsel for the petitioner has very much relied on a judgment of Ratnam, J., (as he then was) in the case of K.Avinasilingam v. Hamsa and another K.Avinasilingam v. Hamsa and another K.Avinasilingam v. Hamsa and another , 1990 T.L.N.J. 108 In the said decision, the learned Judge has held that the deposit contemplated under Sec.8(5) of the Act pursuant to the order passed by the Rent Controller should also be regular and in time so that no occasion for the landlord initiating an action for eviction on the ground of wilful default, arises. His Lordship has also held that the very purpose behind Secs.8(5) and 9(2) of the Act will be completely lost, if it is to be held that the deposit of rents could be made by the tenant as and when he chooses. There is no dispute with regard to the said proposition of law laid down in that case. I have already stated that in view of the attitude of the landlord, the petitioner-tenant has filed appropriate petition under Sec.8(5) of the Act and also necessary lodgment schedule. In view of the delay in passing orders, the petitioner could not deposit rent then and there. In other works, it is clear that since the court had not issued challan for deposit of rent, the rent had not been paid for certain months, the same cannot be termed to be wilful. In view of the delay in passing orders, the petitioner could not deposit rent then and there. In other works, it is clear that since the court had not issued challan for deposit of rent, the rent had not been paid for certain months, the same cannot be termed to be wilful. I am satisfied that the landlord had refused to receive the rent sent by the tenant through money orders prior to the filing of the petition. It is also brought to my notice that the landlord had filed a petition for fixation of fair rent and the tenant had also filed a petition seeking permission of the court to deposit the rent under Sec.8(5) of the Act. In the circumstances, the non-payment of rent could not be construed as wilful. When there is enough material to show that the court had not issued challan for deposit of rents and because of this reason the rents were not deposited for few months, I am of the view that the principle namely no party should be prejudiced by the act of the court is applicable to petitioners case and the delay caused due to the pendency of the proceedings could not be used against the tenants interest. All those aspects have not been considered by both the authorities and they committed an error in rendering a finding that non-deposit of rent for the period from November, 1990 to August, 1991 was intentional and deliberate. The said finding cannot be accepted for the reasons mentioned above. 8. Under these circumstances, the impugned order of both the authorities are set aside; consequently the revision petition filed by the tenant is allowed. No costs. C.M.P.No.22238 of 1999 is closed.