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2004 DIGILAW 284 (MAD)

K. Periyanayagam v. J. K. Savithri & Others

2004-02-25

S.K.KRISHNAN

body2004
Judgment :- The Civil Revision Petition is directed against the judgment and decree passed in R.C.A.No.14 of 1992 on the file of the Principal Subordinate Judge, Madurai dated 31.7.2000 confirming the Order and decree passed in R.C.O.P.No.389 of 1985 on the file of the Additional District Munsif-cum-Rent Controller, Madurai Town, dated 10.12.1991. 2. The tenant, who is the revision petitioner, being occupied a front room of Door Nos.233, and 233 b, wherein the respondents, who are owners of the said door numbers are residing, for rent, to run Ayurvedic clinic, at Rs.130/- per moth, thereafter, the same was increased to Rs.200/- per month. The petitioner was not proper in paying the rent. On 11.5.1985 the petitioner paid a sum of Rs.400/- and thereafter, he did not make any payment. On the date of filing the petition, he was of the balance of Rs.2540/-. After the receipt of the notice dated 20.6.1985, he paid Rs.300/-, however, he has to pay Rs.2240/-. Since, the space for the pathway is not enough for the respondents and their family members, they decided to convert the room let out to the petitioner into a pathway and the same was informed to the petitioner, but he did not respond to their request, and therefore, the respondents issued a notice on 20.6.1985, even for which no reply has been given. Hence, the respondents filed a petition before the Rent Controller, Madurai, who framed the following two issues. a. Whether the respondent/tenant has committed any wilful default in paying the rent? b. Whether petition-building is required for the own use of the landlords ? 3. On considering the evidence and the materials on record, the rent controller, decided the issues in favour of the respondents herein and allowed the petition by ordering eviction. Against which, the petitioner filed an appeal before the Rent Control Appellate Authority, Madurai, who, by his order, confirmed the order of the Rent Controller. Aggrieved by the same, the tenant has come forward with this revision. 4. Heard the learned counsel for the petitioner as well as the respondents. 5. Against which, the petitioner filed an appeal before the Rent Control Appellate Authority, Madurai, who, by his order, confirmed the order of the Rent Controller. Aggrieved by the same, the tenant has come forward with this revision. 4. Heard the learned counsel for the petitioner as well as the respondents. 5. The learned counsel for the petitioner would contend that though the Rent Controller had not decided the matter in a proper perspective, the appellate authority also simply confirmed the findings of the Rent Controller and therefore, the order of the Appellate Authority is not sustainable under law and hence, the same is liable to be set aside. 6. Per contra, the learned counsel for the respondents would contend that the respondents have adduced satisfactory evidence to prove the wilful default committed by the petitioner in paying the rent and the bonafide requirement of the building being occupied by the petitioner and also on the basis of the materials placed before the Rent Controller in support their claim, the Rent Controller arrived at a right conclusion and decided the matter in a proper perspective and therefore, the revision has to be dismissed. Further, the learned counsel relied upon the following decisions in support of his contention. 7. In S. SUNDARAM PILLAI ETC., VS. V. R. PATTABIRAMAN (AIR 1985 SUPREME COURT 582), the Suprme Court held as follows: "As we read the explanation, it does not at all take away the mandatory duty cast on the Controller in the proviso to decide if a default is wilful or not. Indeed, if the landlord chooses to give two months' notice to his tenant and he does not pay the rent, then, in the absence of substantial and compelling reasons, the controller or the court can certainly presume that the default is wilful and order his eviction straightaway. We are unable to accept the view that whether two months' notice for payment of rent is given or not, it will always be open to the controller under the proviso to determine the question of wilful default because that would render the very object of Explanation otiose and nugatory. We are unable to accept the view that whether two months' notice for payment of rent is given or not, it will always be open to the controller under the proviso to determine the question of wilful default because that would render the very object of Explanation otiose and nugatory. We express our view in the matter in the following terms: (1) Where no notice is given by the landlord in terms of the Explanation, the Controller, having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may given the tenant a chance of locus poenitentiae by giving a reasonable time, which the status puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected. (2) 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." 8. In ABDUL KADER VS. G.D. GOVINDARAJ (D) BY L.Rs., the Supreme Court held as follows: " The suit filed by the landlord is preceded by a two months notice by the landlord served on the tenant demanding the payment of rent including the amount of tax in arrears. The suit was filed after awaiting the fulfilment of the demand for the requisite period of two months. According to the Explanation, appended to Sub-sec.(2) of Section 10, the default to pay or tender rent shall be construed wilful if default in payment or tender continues after issue of two months' notice by the landlord for clearing the arrears. The suit was filed after awaiting the fulfilment of the demand for the requisite period of two months. According to the Explanation, appended to Sub-sec.(2) of Section 10, the default to pay or tender rent shall be construed wilful if default in payment or tender continues after issue of two months' notice by the landlord for clearing the arrears. This Explanation came up for consideration of this Court in S.Sundaram V. V.R. Pattabiraman, A.I.R. 1985 S.C.582 d and it was held that if despite notice, the arrears are not paid, the tenant is said to have committed a wilful default and he will be liable to be evicted forthwith. It has been further held that where the landlord chooses to issue two months' notice and the rent is not paid that would be conclusive proof of the default being wilful unless the tenant proves his incapability of paying rent due to unavoidable circumstances. Needless to say, it is not the case of the tenant that there were any such unavoidable circumstances which had rendered him incapable of paying the rent." 7. On a perusal of the judgment of the appellate authority it reveals that the appellate authority has not discussed the facts either at short or at length with the conclusion arrived at by the Rent Controller with reference to the contention of the respondents that the petitioner has committed wilful default and their bonafide requirement of additional accommodation. 8. On a perusal of the above decisions, with regard to wilful default, it reveals that where the landlord chooses to issue two months notice and the rent is not paid that would be conclusive proof of the default being wilful unless the tenant proves his incapability of paying rent due to unavoidable circumstances. I do not find any finding with regard to wilful default, on the basis of oral and documentary evidence available on record, on the above issue in the order of the appellate authority. 9. With regard to additional accommodation, there is also no finding in the order of the learned Subordinate Judge that the requirement of additional accommodation is a bonafide one and if that claim is bonafide one, then there should be a finding as to whether the advantages of the landlord would outweigh the disadvantages of the tenant for ordering eviction. 10. With regard to additional accommodation, there is also no finding in the order of the learned Subordinate Judge that the requirement of additional accommodation is a bonafide one and if that claim is bonafide one, then there should be a finding as to whether the advantages of the landlord would outweigh the disadvantages of the tenant for ordering eviction. 10. On a perusal of the order of the lower appellate authority, I do not find any finding with regard to wilful default and requirement of additional accommodation, but the only finding of the lower appellate authority is as follows: 11. The above finding of the lower appellate authority, as said above, without discussing the facts and the materials available on record with the conclusion arrived at by the Rent Controller, is not proper and correct. At this juncture, it is pertinent to note that the tenant, who aggrieved against the order of the Rent Controller, filed an appeal before the lower appellate authority. The lower appellate authority merely endorsed the decision of the trial Court. Such sort of mere endorsement, in the name of finding without assigning any reasons therefore and without discussing the facts and legal positions with the decision of the trial Court, should not be allowed. It is very against the principles of natural justice and this trend should be discouraged. Otherwise, not only the faith reposed on the judiciary by the litigants will be vanished, but also, it would pave the way for accumulation of pendency of cases in the appellate Court. The affected party should know why the decision has gone against him and the justice rendered by the Court through the reasons given by it should convince the affected party consciously, eventhough the decision has gone against him, that what was held by the Court is correct. In this regard, the Supreme Court recently held in STATE OF PUNJAB VS. BHAG SINGH ((2004)1 SUPREME COURT CASES 547) as follows: "Even in respect of administrative orders, Lord Denning, M.R. in Breen V. Amalgamated Engg. Union, observed:"The giving of reasons is one of the fundamentals of good administration". "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. Union, observed:"The giving of reasons is one of the fundamentals of good administration". "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 11. For the reasons stated above, this Court is of the view that since the appellate authority failed to dispose of the appeal in a proper manner, it is proper, to meet the ends of justice, to remand matter to the appellate authority to appreciate the evidence and the materials available on record, in a proper manner, to arrive at a right and just conclusion in accordance with law. Accordingly, the order impugned in this revision is set aside and the matter is remitted back to the appellate authority, The Principal Subordinate Judge, Madurai, for disposing the appeal in a proper manner within two months from the date of the receipt of the papers. 12. With the above direction, the revision is disposed of. No costs. Consequently, the C.M.P.No.18235 of 2000 is closed.