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Madras High Court · body

2000 DIGILAW 824 (MAD)

B. Sarojini v. Rajeswari Subramaniam & Others

2000-08-17

K.NATARAJAN

body2000
Judgment : 1. C.R.P.No.1563 of 2000 has been preferred by the revision petitioner/tenant against the fair and decretal order in R.C.A.No.86 of 1991 on the file of the II Additional Subordinate Judge-cum-Appellate Authority, Coimbatore, confirming the order and decree, dated 27. 1991 in R.C.O.P.No.108 of 1987 on the file of the I Additional District Munsif-cum-Rent Controller, Coimbatore. 2. C.R.P.No.1564 of 2000 has also been preferred by the revision petitioner/tenant against the fair and decretal order, dated 112. 1999 in R.C.A.No.28 of 1992 on the file of the II Additional Subordinate Judge-Cum-Appellate Authority, Coimbatore confirming the decretal order, dated 27. 1991 in R.C.O.P.No.43 of 1987 on the file of the I Additional District Munsif-cum-Rent Controller, Coimbatore. 3. R.C.O.P.No.108 of 1987, from which C.R.P.No.1563 arise, had been filed by the petitioners/landlord for eviction against the respondent/tenant under Sec.10(2)(1) read with Secs.10 (2)(ii)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ‘the Act’ for short) on the ground the shop bearing old Door No.366, new Door No.685, Raja Street, Coimbatore was leased to the tenant on a monthly rent of Rs.210. The petitioners had right of access to an extent of 5 1/2 feet × 45 feet in the shop premises to reach the main road. The shop had been leased for running ghee business and the tenancy commenced on 23. 1983. The tenant committed wilful default in the payment of rent for the period from 3. 1986 to 23. 1987 amounting to a sum of Rs.2,730. Further, against the purpose for which it was let out, the tenant put the premises to different user, namely, for residential purpose. She also committed acts of waste by changing the door by shifting it. The tenant resisted the petition stating that there was no wilful default in the payment of rent and the allegation that she put the premises to different user and committed act of waste is false. 4. R.C.O.P.No.43 of 1987 had been filed by the tenant under Sec.9 of the Act praying to deposit the rent in court, as he is unable to know from the first respondent, who had let out the premises, as to whether he had executed the settlement deed in favour of his wife, the second respondent and he is under a bona fide doubt as to the person entitled to receive the rent. The respondents resisted the petition stating they never refused to receive the rent as agreed and they also did not direct the tenant to deposit the rent in court. There was absolutely no misunderstanding between the parties as to the receipt of the rent and the petition under Sec.9 of the Act was misconceived. 5. The learned Rent Controller-cum-District Munsif, Coimbatore took both the petitions together, as the parties are the same and the subject matter is also the same. On an appreciation of the evidence placed before him, he reached the conclusion that the tenant has not only committed wilful default, but also was irregular in the payment of rent even after the institution of the petition for eviction. He also found that the tenant had put the premises to different user and the act of waste has been proved. He further reached the conclusion that there is no acceptable evidence to show the landlord refused to receive the rent and a situation arose for the tenant to deposit the rent in court. Therefore, he allowed R.C.O.P.No.108 of 1987 and ordered eviction and dismissed R.C.O.P.No.43 of 1987. 6. Aggrieved with the said fair and decretal order in both the petitions, the tenant preferred R.C.A.Nos.86 of 1991 and 28 of 1992. The learned Subordinate Judge-cum-Rent Control Appellate Authority, who heard the appeals, on a re-appraisal of the evidence and for the reasons assigned by him in the common judgment, concurred with the finding of the learned Rent Controller that the tenant had committed wilful default in the payment of rent and also put the premises to different user. However, he found the allegation that the tenant had committed acts of waste has not been satisfactorily established. Ultimately, he confirmed the order of eviction. He was also of the view that the petition filed by the petitioner under Sec.9 of the Act was misconceived and dismissed the other appeal also, which has given rise to the present civil revision petitions. 7. The learned counsel for the revision petitioner/tenant submitted before me that the agreed rent for the premises is only Rs.210, whereas the landlord was having a sum of Rs.2500 as advance. Under the provisions of Sec.7 of the Act, the landlord is entitled to collect only a months rent as advance. 7. The learned counsel for the revision petitioner/tenant submitted before me that the agreed rent for the premises is only Rs.210, whereas the landlord was having a sum of Rs.2500 as advance. Under the provisions of Sec.7 of the Act, the landlord is entitled to collect only a months rent as advance. Basing reliance on the ruling of the Supreme Court of India reported in K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed, (1996)2 L.W. 159 it was contended that the landlord should have adjusted the rent which was lying in his hands as advance against the arrears of rent and if such a calculation is made, the tenant was in arrears for a period of one month only, which cannot be said to be wilful. In the last portion of paragraph 7 of the said decision, it has been held: ‘7. …Cl.(a) of Sub-sec.(2) enacts that a landlord is entitled to claim and receive only the agreed rent, which was Rs.150 per month in this case. The proviso to clause (a) permits the landlord to receive by way of advance an amount not exceeding one months rent only i.e., Rs.150 in the present case. Cl.(b) provides for the situation where any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided in Cl.(a) i.e., any sum paid in excess of the agreed rent and an amount not exceeding one months rent by way of advance. Cl.(b) enacts that the amount in excess of the sum which the landlord is permitted to take under Cl.(a) shall be refunded by the landlord to the person by whom it was paid, i.e., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, Cl.(b) requires that the excess amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount undoubtedly is that it is the tenants money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenants option. Any other stipulation in contravention to it has no legal effect being null and void. “In Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others, (1999)1 L.W. 560 it has been held by the Supreme Court that in view of the provision under Sec.7(3) of the Act, the stipulation that the advance amount collected in excess of one months rent will be refundable at the end of the tenancy is null and void, then the amount so collected from the premises became payable to the tenant immediately. The learned counsel for the revision petitioner further contended that both the courts below have failed to take notice of the rulings of the Supreme Court cited above and committed an error in holding that the tenant has committed wilful default in the payment of rent. However, he had submitted that the petition under Sec.9 of the Act by the tenant to deposit the rent in court had not been done as per the provision laid down under the Act, as no notice had been issued to the landlord requiring him to furnish the bank in which the amount has to be deposited and that he had refused to accept the rent and the petition filed by the tenant is not in conformity with the provisions of Sec.9 of the Act. 8. Per contra, the learned counsel for the landlord invited the attention of this Court to the judgments of the courts below and pointed out that both the courts have recorded a finding concurrently that the tenant was not only in arrears for the period from 3. 1986 to 33. 1987, but was also in arrears during the subsequent period, namely, even after the petition for eviction was filed. 1986 to 33. 1987, but was also in arrears during the subsequent period, namely, even after the petition for eviction was filed. The attention of this Court was invited to the evidence of the tenant, wherein, the husband of the tenant Balasubramaniam stated that the tenant was in arrears of rent from 6. 1986 to 35. 1991, i.e., for a period of 63 months, which amounts to Rs.13,230. It is his further evidence that he deposited the said arrears in court in instalments, namely, Rs.2,310, Rs.1,470, Rs.2,000, Rs.4,200 and by pay order on the Punjab National Bank for Rs.630. The learned counsel for the landlord submitted that the interpretation given by the learned counsel, for the tenant in respect of the ruling in K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed, (1996)2 L.W. 159 is incorrect. It is not doubt true that Clause (b) of Sec.7 of the Act requires the landlord that the excess amount paid to him has to be refunded by the landlord to the tenant, unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. In the case on hand, at no time the tenant required the landlord to refund the excess amount or exercised his option and directed the landlord to adjust the excess amount towards the arrears of rent payable by him. Unless the option is exercised, the landlord was not under any obligation to adjust the excess amount in his hands. In Poormans Depot Registration Firm by its President, Rathinasabapathi v. P.R.M.A. Krishnan Poormans Depot Registration Firm by its President, Rathinasabapathi v. P.R.M.A. Krishnan Poormans Depot Registration Firm by its President, Rathinasabapathi v. P.R.M.A. Krishnan (1997)2 MLJ. 467 on similar facts, a learned Judge of this Court has held at the end of para 10 as follows: ”…The tenant is bound to pay the rent regularly as agreed. The subsequent conduct of the tenant can be taken into account to come to a conclusion whether there was any supine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available on record would prove that the tenant was in the habit of paying the rent irregularity. The subsequent conduct of the tenant can be taken into account to come to a conclusion whether there was any supine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available on record would prove that the tenant was in the habit of paying the rent irregularity. There is no wrong in taking into consideration of the cumulative effect of the conduct of the tenant in payment of the rent to assess the nature of default. The appellate authority has applied his mind with respect to the documents and evidence to come to the conclusion that the tenant has committed default in payment of rent wilfully. In the circumstances of the cases and on the basis of the evidence on record, I am not in a position to take a different view.” The same position has been reiterated in B.Anraj Pipada v. V.Umayal B.Anraj Pipada v. V.Umayal B.Anraj Pipada v. V.Umayal, (1998)3 L.W. 159 . The learned counsel for the revision petitioner/tenant was unable to explain as to how the tenant has not committed any wilful default in the payment of rent in the face of the admission in the evidence. The default in the payment of rent had been committed not for one or two months, but for a period of 63 months. Both the courts below have concurrently found that the tenant had committed wilful default not only to the period in question, but even after the filing of the petition, which fact has become final and no interference is called for by this Court. The legal position submitted by the learned counsel for the appellant, in my opinion, is incorrect and the principles of law laid down in Modern Hotel, Gudur, represented by M.N.Narayanan v. K.Radhakrishnaiah Modern Hotel, Gudur, represented by M.N.Narayanan v. K.Radhakrishnaiah Modern Hotel, Gudur, represented by M.N.Narayanan v. K.Radhakrishnaiah, (1990)2 L.W. 560 are not applicable to the facts of the present case. The tenant never opted that the amount in excess of one months rent has to be adjusted towards the rent. The tenant never opted that the amount in excess of one months rent has to be adjusted towards the rent. Even assuming for the sake of argument, the tenant had exercised such an option after retaining one months advance, the excess amount was not sufficient to discharge the entire arrears of rent and still there is a balance and, therefore, I am clearly of the opinion that the tenant has committed wilful default in the payment of rent and both the courts below are correct in rendering such a finding. 9. Sofar as the contention that the tenant had put the premises to different user, I am unable to agree with the finding of the courts below. Except the ipso dixit of the landlord that the tenant had put the premises to different user, namely, for residential purpose, there is absolutely no evidence to show that the tenant was cooking food in the premises or taking bed along with the family. Therefore, I am of the view that the finding the premises had been put to different user has been rendered on no evidence and the said finding has to be reversed and the same is accordingly reversed. 10. In view of the discussion and the finding that the tenant had committed wilful default in the payment of rent and the petition filed by the tenant under Sec.9 of the Act is not in conformity with the provisions of law, as stated by the learned counsel for the appellant himself, in the result, both the revision petitions are dismissed with costs. Time for vacating the premises is 15 days from today. Consequently, the connected miscellaneous petition is also dismissed.