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Madras High Court · body

2002 DIGILAW 265 (MAD)

Nagammal v. Boomi and another

2002-03-26

V.BAKTHAVATSALU

body2002
ORDER: The landlady is the revision petitioner. The landlady, who succeeded before the Rent Controller, but lost before the Appellate Authority, has filed this revision petition. 2. The case of the petitioner in the R.C.O.P. is as follows: The petition mentioned property belongs to the petitioner. Santhanam Pillai, the father of the respondents, became a tenant under the petitioner on a monthly rent of Rs.12. After the death of Santhanam Pillai, his sons, the respondents, are residing in the petition mentioned property. The respondents were irregular in the payment of rent. The respondent have paid the rent up to Chittirai Rathakshi year. From Vaikasi, the respondents have not paid the rent and have committed wilful default in the payment of rent. The respondents have defaulted to pay ten months rent i.e., Rs.120. The petitioner issued a notice to the second respondent on 25.1.1985 and the same was returned. Therefore, this petition is filed under Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control Act) 18 of 1960 (in short “the Act”). 3. The case of the respondents is as follows: The first respondent is the younger brother of the second respondent. The respondents had been regularly paying the rent. The petitioner had been demanding enhanced rent from the first respondent and she had been evading to receive the rent whenever tendered in person. The second respondent is not employed at Madurai, but is working elsewhere. The first respondent had been sending the rent by money order. Later on dispute arose in the family of the petitioner. The petitioner’s son, who is unfortunately handicapped, demanded the rent from this respondent. But the petitioner was not amenable for it. Further there was a property dispute between the petitioner’s family on the one side and a third party on the other side. The petitioner had been assuring that all the family disputes would be settled and rents could be paid thereafter. Hence, this respondent did not pay rent to anyone. Even before the date of the first hearing, the respondent deposited the rent into Court. The rent mentioned in the petition was deposited in April, 1985. The date of the first hearing was on 12.6.1985. There is no question of arrears of rent or wilful default. The respondents have not committed any wilful default. Even before the date of the first hearing, the respondent deposited the rent into Court. The rent mentioned in the petition was deposited in April, 1985. The date of the first hearing was on 12.6.1985. There is no question of arrears of rent or wilful default. The respondents have not committed any wilful default. Assuming without admitting that there was any default in the payment of rent, the Court may be pleased to invoke the provisions of Sec.10(2)(i) of the Act by granting time to deposit the rent. 4. Before the Rent Controller, the landlady has been examined as P.W.1 and the first respondent has been examined as R.W.1. On the side of the petitioner, Exs.P-1 to P-6 were marked. On a consideration of oral and documentary evidence, the Rent Controller has held that the tenants have committed wilful default in the payment of rent and therefore, allowed the R.C.O.P. Aggrieved against the said order, the tenants preferred an appeal in R.C.A. No.48 of 1994. The Appellate Authority on consideration of the evidence allowed the appeal and consequently, the R.C.O.P. filed by the revision petitioner was dismissed. Aggrieved against the said order, the landlady has filed this revision. 5. Learned counsel for the revision petitioner contended that the Appellate Authority failed to consider the reasons given by the Rent Controller in ordering eviction and that the Appellate Authority failed to consider that the tenants have come forward with a false explanation for non-payment of rent and that without considering the admission of the tenant in the evidence, the Appellate Authority has held that deposit of rent at the first hearing is sufficient to hold that the tenant has not committed any wilful default and that the above finding of the Appellate Authority is not correct and that the Appellate Authority has failed to see that the subsequent deposit of rent in the Court would not cure wilful default as the tenant has failed to comply with the mandatory provisions of Sec.8 of the Act. 6. 6. On the other hand, learned counsel for the respondent contended that the Appellate Authority relied upon the judgment of this Court reported in A.M.A. Jabbar v. T.S.Abdul Bari and two others, (1997)2 M.L.J. 181 : (1997)2 L.W. 616 for coming to a conclusion that as the tenant has deposited the entire arrears at the first hearing of the case, his default in the payment of rent would not amount of wilful default and that the above decision is also based on the judgment of the Supreme Court and that R.W.1, the tenant, has offered reasons for not paying the rent to the landlady and that as the Appellate Authority has given a finding on proper appreciation of facts and evidence, the said findings cannot be interfered with in this revision. 7. It is admitted that the father of the respondents was the original tenant under the petitioner on a monthly rent of Rs.12 and that after his death, the respondents became the tenants of the property. But it is contended by the first respondent that the second respondent, his brother, is not residing in the petition mentioned property and that he was residing elsewhere. The second respondent died during the pendency of this revision. As he was not residing in the petition mentioned property, he was given up and his L.Rs. were not impleaded. 8. There is no dispute that the first respondent/ tenant has paid the arrears of rent only after the R.C.O.P. is filed. It is admitted that the tenant has failed to pay paid 10 months rent due from the Tamil month Vaikasi. The allegation in the petition that the tenant is liable to pay rent of Rs.120 and that till the date of filing the R.C.O.P., the above amount was not paid is not specifically denied in the counter. On the other hand, in paragraph 4 of the counter, it is stated that the amount was deposited in the month of April, 1985. The R.C.O.P. was presented before the Rent Controller on 19.3.1985. R.W.1, the first respondent/ tenant, has admitted that only after filing the R.C.O.P., he deposited the rent amount into Court at the first hearing. From the above facts, it has to be held that the arrears of rent claimed by the petitioner was deposited into Court only after filing the R.C.O.P. 9. R.W.1, the first respondent/ tenant, has admitted that only after filing the R.C.O.P., he deposited the rent amount into Court at the first hearing. From the above facts, it has to be held that the arrears of rent claimed by the petitioner was deposited into Court only after filing the R.C.O.P. 9. It is the case of the landlady that the tenant has committed wilful default in the payment of rent and that he has not given any explanation for non-payment of rent till the date of filing the R.C.O.P. It is significant to note that the landlady issued notice to the tenant under Ex.A-1 on 22.1.1985. It is stated in the notice that as on the date of the notice, the tenant is liable to pay rent for 8 months i.e., Rs.96. Ex.A-6 is the acknowledgment signed by R.W.1, the first respondent. R.W.1, has admitted in his evidence that he received the notice Ex.A-1 and that he did not pay 10 months rent after the receipt of the said notice and that he also did not issue any reply to the above notice. Explantion to Sec.10 of the Act states that default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment of rent continues after the issue of two months notice by the landlord claiming the rent. Relying upon the above explanation to the Section, it is contended by the tenant that he deposited the entire arrears even at the first hearing of the case and as such, it cannot be said that the non-payment of rent for the period prior to the filing of R.C.O.P. is wilful. 10. The question whether the non-payment of rent by the tenant for a particular period, amounts to wilful default or not would depend upon the facts of each case. It cannot be laid down as an universal rule that whenever the tenant deposits the arrears of rent into Court at the first hearing of the case, the tenant should be absolved from the term “wilful default”. It cannot be laid down as an universal rule that whenever the tenant deposits the arrears of rent into Court at the first hearing of the case, the tenant should be absolved from the term “wilful default”. The Appellate Authority relying upon the judgment of this Court reported in A.M.A. Jabbar v. T.S.Abdul Bari, (1997)2 M.L.J. 181 : (1997)2 L.W. 616 , held that the tenant has deposited the entire arrears of rent before 12.6.1985 i.e., the first hearing of the case and that the landlady has also accepted the said fact and that therefore, it cannot be said that the tenant has committed wilful default. Learned counsel for the tenant mainly relies upon the above decision to substantiate his plea that the tenant has not committed wilful default. In this context, it would be useful to refer to the above decision. This Court on consideration of the facts of the case in the above decision and the judgment of the Supreme Court reported in V.Krishna Mudaliar v. Lakshmi Ammal, (1996) 2 L.W. 467 has held that since the tenant has paid the entire arrears before the effective date of hearing, there is no wilful default committed by him. But on a perusal of the judgment of the Supreme Court, it is clear that the Supreme Court on peculiar facts of the said case has given the ruling in that case that the tenant has not committed wilful default. It is stated in the above decision that the tenant had deposited the rent immediately after the ejectment application. The facts of the above case will show that though the appellant was the tenant of the property in dispute under the earlier owner, the respondent/ landlord has dragged the appellant to the Civil Court on the allegation that he was a trespasser and that the Civil Court decided the controversy in favour of the appellant and held that he was the tenant in the property and that in the reply notice also the tenant has stated that he could not pay the rent because the respondent never accepted him as the tenant and refused to accept the rent till the proceedings were finalised by the Civil Court and that in the reply notice it was also stated that the non-payment of rent was not due to any fault on the part of the tenant. The Supreme Court has held that the above facts were not taken into consideration by the Courts below in deciding the question whether the default committed by the tenant is wilful or not. It is, thus, clear that the tenant has offered valid explanation for not paying the rent and depositing the rent only after the R.C.O.P. is filed. Therefore, it is clear that the fact that the tenant deposited the rent into Court at the first hearing of R.C.O.P. alone is not a valid ground for coming to a conclusion that the default in the payment of rent is not wilful. There can be no dispute that the question whether the non-payment of rent would tantamounts to supine indifference on the part of the tenant can be inferred from certain admitted facts. The above reported decision i.e., A.M.A. Jabbar v. T.S.Abdul Bari, (1997)2 M.L.J. 181 : (1997)2 L.W. 616 , has not been approved by this Court in the later judgment. In the decision reported in Pandian, K.S. v. G.Rukmani Bai, (2001)1 C.T.C. 356 , a learned single Judge of this Court referring to the above decision has held thus: “With due respect I am unable to share the view of the learned Judge in view of the reasons stated above, especially in the context of the judgment of the Supreme Court in S.Sundaram v. V.R.Pattabhiraman, 98 L.W. 49: A.I.R. 1985 S.C. 582.” Relying upon the judgment of this Court delivered by K.Govindarajan, J., the learned single Judge has held thus: “Being faced with the very same contentions as raised before me, K.Govindarajan, J. held that accepting the contention that there was no wilful default if the tenant had deposited the entire rent on the first date of hearing, would amount to rewriting the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act vide: Easwara Rao, T. v. N.W.Ansari, (1999)1 M.L.J. 401 : (1999)1 C.T.C. 221 . I am in respectful agreement with him”. 11. As already stated, in V.Krishna Mudaliar v. Lakshmi Ammal, (1996) 2 L.W. 467 referred to above, the tenant has offered valid explanation for the delay in the payment of rent and therefore, the Supreme Court has held that as the tenant deposited the rent into Court at the first hearing of the case, it cannot be said that the tenant has committed wilful default. Therefore, I am unable to accept the contention of the learned counsel for the tenant that the judgment of this Court reported in A.M.A. Jabbar v. T.S.Abdul Bari, (1997)2 M.L.J. 181 : (1997)2 L.W. 616 has to be followed in all cases. 12. Learned counsel for the revision petitioner relies upon the judgment of the Supreme Court reported in S.Sundaram v. V.R.Pattabhiraman, 98 L.W. 49: A.I.R. 1985 S.C. 582. The expression “wilful default” has been described in the above decision 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 legal 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 Tamil Nadu Act or other State Acts which are in pari materia”. Regarding the facts relating to issue of notice and non-payment of rent within time, the Apex Court has observed thus: “But if the landlord chooses to give two months’ notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord”. Bearing the principles of law laid down in the above decision, the question whether or not the tenant has committed wilful default in this case has to be decided. 13. If the tenant is able to give valid explanation for non-payment of rent till the same is deposited into Court, then there would be no difficulty in holding that the tenant has not committed wilful default. 13. If the tenant is able to give valid explanation for non-payment of rent till the same is deposited into Court, then there would be no difficulty in holding that the tenant has not committed wilful default. In this case, the tenant has offered the following explanation in the counter:(i) The petitioner/ landlord demanded enhanced rent and she evaded to receive the rent; (ii) The first respondent sent the rent by money orders; (iii) There was a dispute between the landlady and the landlady represented that the rent would be received after settlement of the dispute; (iv) The son of the petitioner, who is handicapped, demanded the rent, for which the tenant was not agreeable. Therefore, he did not pay the rent. On tenant’s own showing, the explanation offered by the tenant/ R.W.1 cannot be accepted at all. There are no materials to show that the petitioner/ landlady demanded enhanced rent from the tenant. There are also no materials to show that the first respondent sent the amount by money order to the landlady. R.W.1, the tenant, has admitted in his evidence that the son of the petitioner is dumb and he could not not speak and that he demanded the rent from him. I fail to understand as to how a dumb person could have demanded amount from the tenant, especially when the landlady is alive. The above admission of R.W.1 itself will show that the tenant has come forward to offer false explanation for non-payment of rent. 14. It is, further, stated that their arose some litigation between the landlady and the third party. P.W.1, the landlady, has also admitted in evidence that one Hussain filed a suit against her and the same was dismissed. R.W.1 has admitted that he is aware of the fact even before filing the R.C.O.P. that there was litigation between the landlady and the third party ten years ago. But he has admitted that despite the fact that there was litigation he was paying the rent to P.W.1. R.W.1 has admitted that he is aware of the fact even before filing the R.C.O.P. that there was litigation between the landlady and the third party ten years ago. But he has admitted that despite the fact that there was litigation he was paying the rent to P.W.1. If really there is any truth in the case of the tenant that he could not pay the rent, since there were litigations between the landlady and the third party regarding the title to the property, he could have filed petition under Sec.8(5) of the Rent Control Act and the tenant could have asked the landlady to specify the name of the bank for depositing the rent. It is not shown that the tenant has initiated any proceedings for paying the rent in accordance with Sec.8 (2 to 5) of the Act. On this aspect, learned counsel for the revision petitioner relies upon the decision of this Court reported in M.Nagarajan v. Selvasubramaniam, (2001)3 C.T.C. 725. It is held in the above decision that if there was any controversy over the factum of rent, the tenant should have taken steps either to deposit the rent or should have taken steps to file a petition for fixation of fair rent and that he cannot sleep over and be indifferent for more than three months. 15. It is significant to note that the tenant did not issue reply to the notice Ex.A-1 issued by the landlady. If really there is any truth in the case of the tenant that the petitioner demanded enhanced rent and that since there were litigations between the landlady and the third party regarding the title to the property he could not pay the rent, he would have certainly issued reply to the notice Ex.A-1. In the counter, no reasons are given as to why the reply was not given to the petitioner’s notice. But in evidence, he has stated that after receipt of the notice, he contacted the petitioner and that she told him that after disposal of civil suit, she would receive the rent. In the counter, it is only alleged that the petitioner had been assuring that all family disputes would be settled soon and rent could be paid thereafter. But in evidence, he has stated that after receipt of the notice, he contacted the petitioner and that she told him that after disposal of civil suit, she would receive the rent. In the counter, it is only alleged that the petitioner had been assuring that all family disputes would be settled soon and rent could be paid thereafter. It is no where stated that after issue of notice, the tenant met the landlady and that the landlady assured him that she would receive the rent after the disposal of the civil suit. It is not even suggested to P.W.1, the landlady, that R.W.1, the tenant, approached her after issue of notice and that she assured that she would receive the rent after the disposal of the civil litigation. Therefore, it has to be held that the explanation trotted out by the tenant now is an afterthought. It is, thus, established that the explanation given by the tenant for non-payment of rent till the same is deposited into Court cannot be accepted to be true. Absolutely, there was no justification for the tenant to withhold the rent for about 10 months prior to filing the R.C.O.P. If all the above facts, are taken into consideration, it would lead to a definite inference that the non-payment of rent by the tenant for about 10 months is nothing but wilful. I hold that the Rent Controller has properly appreciated the facts and evidence available in this case. On the other hand, the Appellate Authority has committed error in appreciation of the evidence. Therefore, I hold that the landlady has established that the tenant has committed wilful default and as such, the R.C.O.P. filed by the landlady has to be allowed. 16. In the result, the civil revision petition is allowed. The order and the decretal order of the Appellate Authority are set aside and the order and decretal order of the Rent Controller are restored. The revision petitioner is entitled to costs throughout.