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2004 DIGILAW 260 (MAD)

Abdul Majid v. J. Seetha & Others

2004-02-23

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The tenant is the revision petitioner. The revision is directed against the eviction order of the learned Rent Controller as confirmed by the learned Rent Control Appellate Authority on the ground of wilful default in payment of rent. The eviction sought for on the grounds of own use and occupation and for additional accommodation was negatived by the learned Rent Controller against which no appeal was preferred by the landlords. 2. The petition residential premises has been occupied by the revision petitioner as tenant. The landlords filed the Rent Control Original Petition that the tenant has committed default in payment of rent from December, 1993 till the date of filing of the Rent Control Original Petition for 58 months wilfully at the rate of Rs.100/- per month, as per the finding made in the previous R.C.O.P.No.287 of 1994, though the actual rent was Rs.165/- per month. Therefore, on the ground of wilful default, the said petition was filed. 3. The petition was resisted in the counter denying that the tenant has committed default in payment of rent wilfully as claimed by the landlords. Further, it is stated that the rent sent by money orders regularly to the second respondent herein were refused and therefore, there is no default much-less wilful default in payment of rent as claimed for 58 months. Further, in the counter filed on 29.7.1999 it is also stated that at the very first hearing of the case i.e. on 13.1.1999, the entire arrears of rent and payable upto December, 1998 to the tune of Rs.6,100/- was deposited before the learned Rent Controller and therefore, such payment of rent by deposit of rent cannot be construed as wilful. 4. The learned Rent Controller considering the evidence of the second respondent herein as P.W.1 and also the evidence of the tenant as R.W.1 and Exs.A-1 to A-3 and Ex.B-1 series, found that the tenant has committed default in payment of rent wilfully as claimed by the landlords and in that view, ordered eviction. Such order challenged by appeal by the tenant was confirmed by the learned Rent Control Appellate Authority. Therefore, the tenant has preferred this Civil Revision Petition. 5. Such order challenged by appeal by the tenant was confirmed by the learned Rent Control Appellate Authority. Therefore, the tenant has preferred this Civil Revision Petition. 5. The learned counsel for the revision petitioner/tenant mainly contended that since the landlord, viz., P.W.1, the second respondent herein refused to receive the rent sent by money orders under Ex.B-1 series for the period from January, 1994 to April, 1994 and inasmuch as on the first hearing date of the Rent Control Original Petition, viz., on 13.1.1999, the entire arrears of rent till December, 1998 to the extent of Rs.6,100/- was deposited before the Rent Controller, there have been no default much-less wilful default in payment of rent as claimed by the landlords. 6. The learned counsel for the revision petitioner relied on the decision in the case of P.M.Punnoose – vs. - K.M. Munneruddin and others reported in 2003-4 Law Weekly, 671, in which the Supreme Court has ruled in paragraph 18 at page 678:- "The totality of the conduct of the tenant-appellant, as inferred from the dealings between the parties and the documentary and oral evidence adduced, shows that the appellant has always made an effort at paying or tendering the rent and the delay or default, if any, attributable to the appellant-tenant is bona fide and cannot be said to be wilful in any case." 7. The learned counsel for the respondents/landlords vehemently argued that the tenant has committed default wilfully in payment of rent as claimed, since admittedly the rent of Rs.100/- per month for 61 months to the tune of Rs.6,100/- was deposited only on 13.1.1999 before the Rent Controller. The learned counsel also submitted that though the money orders sent under Ex.B-1 series for the months of January, 1994 to April, 1994 were refused, without resorting to other procedures as contemplated in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the tenant deposited the rent of Rs.6,100/- towards 61 months and till December, 1998 only on 13.1.1999 and there have been supine indifference and callousness on the part of the tenant in payment of rent as such and therefore, such conduct of the tenant amounts to wilful in payment of rent. The learned counsel for the respondents/landlords also argued that despite the fact, the previous R.C.O.P.No.287 of 1994 was also filed on the ground of wilful default in payment of rent, in which proceedings, the rent was fixed as Rs.100/- per month, on which ground, the landlords were not successful, despite the fact that even during the pendency of the said proceedings, the tenant has committed wilful default in payment of rent wilfully. The learned counsel also relied on the following decisions:- (1) R.Govindhammal and others – vs. - A.Nirmala reported in (2002)3 M.L.J. 412 , in which this Court has held:- "Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), Section 10(2)(i). Wilful default to pay rent. Landlords refusing to receive the rent. Tenant not taking any step to deposit the same in Court. Amounts to wilful default. Mere deposit of arrears on receipt of summons or on the date of first hearing of the case would not rectify the defect." (2) E.Palanisamy – vs. - Palanisamy (dead) by L.Rs. and others reported in (2003)1 Supreme Court Cases 123, in which the Supreme Court has held in paragraphs 5 and 8: "The rent legislation is normally intended for the benefit of the tenants. At the same time, the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. Strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant." "The submission that since the deposit of rent had been made, a lenient view ought to be taken is not acceptable. The appellant failed to satisfy the conditions contained in Section 8. The last step can come only after the earlier steps have been taken by the tenant." "The submission that since the deposit of rent had been made, a lenient view ought to be taken is not acceptable. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-section (2), (3) and (4) of Section 8. Therefore, the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference." 8. The landlords previously filed R.C.O.P.No.287 of 1984 for eviction of the tenant herein from the petition premises on the ground of wilful default in payment of rent and the premises bona fide required for own use and occupation. The eviction was ordered on the ground of own use and occupation by the learned Rent Controller in that R.C.O.P.No.287 of 1984 on 1.10.1991 and the order was confirmed by the learned Rent Control Appellate Authority in R.C.A.No.78 of 1991 on 24.12.1993. In the revision petition as per judgment in C.R.P.No.468 of 1994 dated 3.8.1998, this Court permitted the landlords to withdraw the R.C.O.P.No.287 of 1984 granting permission to file separate R.C.O.P. for additional accommodation under Section 10(3)(c) of the Act. Therefore, the landlords have filed R.C.O.P.No.60 of 1998 on 28.10.1998 for eviction on the grounds of wilful default in payment of rent from December 1993 till the date of filing of the petition for 58 months at the rate of Rs.100/- per month as rent decided by the learned Rent Controller in R.C.O.P.No.287 of 1984, though the rent actually was Rs.165/- per month. The tenant herein as per counter and as per the evidence disputed the said fact that he has committed default in payment of rent as claimed wilfully and according to him under Ex.B-1 series the rent sent by money orders for the months of January, 1994 to April, 1994 were returned by the second respondent herein and therefore, he could not pay the rent to the landlords, but however after filing of R.C.O.P.No.60 of 1998, on the first hearing date, viz., on 13.1.1999, the entire rental arrears up to December, 1998 for 61 months to the extent of Rs.6,100/- was deposited before the learned Rent Controller and in that view, there have been no default, much-less wilful default in payment of rent. 9. P.W.1, the second respondent herein has stated in his evidence that no notice was issued before filing of the petition claiming the rental arrears and admittedly the tenant has deposited the rental arrears of Rs.6,100/- on 13.1.1999 before the learned Rent Controller. It is seen from Ex.B-1 series that Rs.300/- was sent by money order on 2.4.1994 towards the rent for the months of January, 1994 to March, 1994 and it appears it was returned as refused by the landlords. It also appears that as per another money order coupon sent under Ex.B-1 series the tenant sent Rs.100/- towards the rent for the month of April, 1994 in respect of door No.29-S Nanjoo Building of Commercial Road, Ootacamund, on 26.5.1994 and it was returned as left. From that it cannot be said that the tenant has not committed default in payment of rent, in that he has not taken other steps as contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act after the return of money orders sent under Ex.B-1 series. Under Section 8 of the said Act if the landlords refuse to receive the rent, then the tenant is to cause notice requesting the landlords to name the bank for the purpose of depositing the rent to the credit of landlords and in case of landlords refusing to specify the name of bank and also refuse to receive the rent sent by money order, then the tenant has to take steps for depositing the rent before the Rent Controller under Section 8(5) of the Act. In fact it appears from Ex.B-1 series, money order coupons and receipts, the rent sent for the month of April, 1994 found returned as the landlord was left and not returned as refused. Even assuming the money order sent as such has been refused, no further steps have been taken by the tenant as contemplated under Section 8 of the said Act as ruled by the Apex Court. The tenant without following the strict compliance as per Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, straightaway sent money order under Ex.B-1 series which is not proper. Therefore, merely because, the tenant has deposited the rental arrears to the extent of Rs.6,100/- up to December, 1998 towards 61 months and up to December, 1998 on the first hearing date, viz., on 13.1.1998, it cannot be said that no default has been committed in payment of rent by the tenant. Despite the fact previous Rent Control Original Petition proceedings were pending which went up to High Court, in depositing of rental arrears up to December, 1998 for 61 months, viz., Rs.6,100/- on 13.1.1999, there have been supine indifference and callousness on the part of the tenant which amounts to wilful. The learned Rent Controller and the learned Rent Control Appellate Authority concurrently found that the tenant has committed wilful default in payment of rent and such finding of facts cannot be interfered with by this Court. It follows the eviction order made on the ground of wilful default in payment of rent is to be confirmed. 10. In the result, this Civil Revision Petition is dismissed with cost. The judgment and decree made in R.C.A.No.31 of 1999 by the learned Rent Control Appellate Authority are confirmed. Consequently, the petitions in C.M.P.Nos.14468 of 2000 and 1933 of 2004 are closed.