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2004 DIGILAW 486 (MAD)

S. Chellasamy v. A. Athilakshmi

2004-03-19

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The unsuccessful tenant in respect of the order of eviction from the petition non-residential premises on the ground of wilful default in payment of rent by the learned Rent Controller and as confirmed by the learned Rent Control Appellate Authority, is the revision petitioner. 2. The respondent/landlord filed the Rent Control Original Petition that the tenant has committed wilful default in payment of rent for the months of February, 1996 to October, 1997 for 21 months at the rate of Rs.500/- per month. The respondent/landlord claims that she is the owner of the property on the death of her husband Alagarsamy Asari as per registered settlement deed executed in her favour and their sons and daughters born through her. It is also stated in the petition that though the tenant paid the rent till January, 1996, thereafter he has committed default in payment of rent from February, 1996 to October, 1997 stating that some other persons are claiming title to the property and as such he would deposit the rent in R.C.O.P.No.9 of 1996 filed under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, but even in the petition he has not deposited the rent. 3. The petition was resisted in the counter that the landlady is the second wife of Alagarsamy Asary and on the death of Alagarsamy Asari, the other issues of the deceased Alagarsamy Asari also claimed rental amount and so the tenant filed R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act and the petition was dismissed after contest. Thereafter, the tenant has been paying rental amount regularly to the respondent's counsel and to the respondent by money order. In fact, the rent for the month of February, 1999 was received by the landlady on 4.3.1999. It is also set out in the counter that in the fire accident, the entire building was gutted out, as a result of which, the tenancy agreement between them came to and a fresh agreement was entered into between them. The superstructure was totally put up by the tenant and the vacant site alone was leased and as such, the tenant is entitled to the benefits under the Tamil Nadu City Tenants Protection Act. 4. Before the Rent Controller, the landlady examined her son Ramadoss as P.W.1 and marked Exs.P-1 and P-2. The superstructure was totally put up by the tenant and the vacant site alone was leased and as such, the tenant is entitled to the benefits under the Tamil Nadu City Tenants Protection Act. 4. Before the Rent Controller, the landlady examined her son Ramadoss as P.W.1 and marked Exs.P-1 and P-2. The tenant examined himself as R.W.1 and marked Exs.R-1 to R-4. The learned Rent Controller taking into consideration such evidence adduced on either side, found that the tenant has committed wilful default in payment of rent for 21 months from February, 1996 to October, 1997 and ordered eviction on that ground. The eviction order of the learned Rent Controller has been confirmed by the learned Rent Control Appellate Authority in the appeal R.C.A.No.2 of 2000, which is challenged in this Civil Revision Petition. 5. The learned counsel for the revision petitioner/tenant contended that since there have been bona fide dispute with regard to the ownership and the rival claimants demanded rent, the tenant filed R.C.O.P.No.9 of 1996 for deposit of rent into Court and therefore the non-payment of rent as claimed by the landlady for the months of February, 1996 to October, 1997 for 21 months cannot be construed as wilful default. In this regard, the learned counsel submitted that after dismissal of R.C.O.P.No.9 of 1996 on 25.11.1997, entire arrears of rent have been paid and therefore, the tenant has committed only default which cannot said to be wilful. The learned counsel for the revision petitioner/tenant relied on the decision P.M.Punnoose – vs. K.M.Munneruddin and others reported in A.I.R. 2003 Supreme Court 2993, in which the Supreme Court ruled in paragraph 13:- "The explanation appended to sub-section (2) of Section 10 of the Act enacts a rule of evidence. After the issuance of two month's notice claiming the rent, the default by tenant shall be construed as wilful raising a presumption in that regard and it will be for the tenant to show availability of sufficient cause or circumstances beyond his control to escape from the consequence of default. After the issuance of two month's notice claiming the rent, the default by tenant shall be construed as wilful raising a presumption in that regard and it will be for the tenant to show availability of sufficient cause or circumstances beyond his control to escape from the consequence of default. The landlord is not prevented from initiating proceedings for eviction on the ground of default under Section 10(2)(i) of the Act, without serving a notice under the Explanation but in that case it will be for the landlord to make out a case of wilful default by tenant failing which the Controller may exercise his discretion under the proviso giving the tenant a reasonable time, not exceeding fifteen days for payment or tender." 6. The learned counsel for the respondent/landlady contended that since admittedly the tenant has paid the rent till January, 1996 and thereafter he committed default in payment of rent from February, 1996 to October, 1997 under pretext that there have been rival claimants, who demanded rent which made the tenant to file R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, despite the fact, he was paying the rent to her on the death of Alagarsamy Asari till January, 1996 and as such, the default in payment of rent for the months of February, 1996 to October, 1997 is to be construed as wilful, in that there have been conscious or deliberate defiance with intention not to pay the rent on the part of the tenant. The learned counsel also submitted that though R.C.O.P.No.9 of 1996 filed under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act was dismissed after contest as early as on 25.11.1997, the rental arrears has been paid only on 10.3.1998 and therefore there have been supine indifference, callousness on the part of the tenant in not paying the rent for the months of February, 1996 to October, 1997 and in paying entire arrears only on 10.3.1998 after dismissal of R.C.O.P.No.9 of 1996 on 25.11.1997. 7. Admittedly, the petition non-residential premises belonged to Alagarsamy and he executed settlement deed under Ex.A-1 dated 25.11.1977 in favour of his second wife, Athilakshmi, the respondent herein and their sons and daughters. 7. Admittedly, the petition non-residential premises belonged to Alagarsamy and he executed settlement deed under Ex.A-1 dated 25.11.1977 in favour of his second wife, Athilakshmi, the respondent herein and their sons and daughters. As per the settlement deed on the death of Alagarsamy, his second wife Athilakshmi is to enjoy the property till her life time and on her death, the property is to devolve upon their children. It is in evidence that Alagarsamy died and on his death admittedly, the revision petitioner has been paying the rent to the respondent herein till January, 1996 attorning the tenancy to her. Though it is claimed in the counter that there was fire accident in which entire building gutted out and the revision petitioner with his money had put up the superstructure entering into separate lease agreement only in respect of the site alone, such a case has not been put-forth by the tenant in the evidence. 8. The revision petitioner has been paying the rent till January, 1996 and thereafter R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act was filed, in that rent for the petition premises was also claimed by Narasiman, son of Alagarsamy through his second wife Athilakshmi by causing notice dated 1.11.1995. It appears that another son Alagarsamy Raja also claimed rent by sending letter and therefore, the tenant filed the said petition. The petition R.C.O.P.No.9 of 1996 was dismissed, which was contested by the first respondent herein, viz., the respondent herein, Athilakshmi, finding that Athilakshmi is entitled to collect the rent in respect of the petition non-residential premises. The revision petitioner also stated in the petition R.C.O.P.No.9 of 1996 that he paid entire rent upto March, 1996 to Athilakshmi and that was not accepted finding that he paid the rent only upto January, 1996 as claimed by the respondent herein in the Rent Control Original Petition subject matter of this Civil Revision Petition. 9. Though the revision petitioner filed R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it appears that he had not deposited the rental amount in that R.C.O.P. and it is the evidence of R.W.1 that at the time of filing of R.C.O.P.No.9 of 1996, rent for 21 months was due. 9. Though the revision petitioner filed R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it appears that he had not deposited the rental amount in that R.C.O.P. and it is the evidence of R.W.1 that at the time of filing of R.C.O.P.No.9 of 1996, rent for 21 months was due. It is seen from Ex.P-2 that R.C.O.P.No.9 of 1996 was dismissed after contest on 25.11.1997 and no appeal has been filed against that order and as such the said order has become final. Though the said petition was dismissed as early as on 25.11.1997, the entire rental arrears have been paid only on 10.3.1998 to the counsel for the respondent. R.C.O.P.No.26 of 1997 was filed on 25.11.1997 and the first hearing of the Rent Control Original Petition was 16.12.1997 on which date, the revision petitioner entered appearance through his advocate and was taking time to file counter for which it was being adjourned and only on 10.3.1998 he paid the arrears of rent. Even assuming it can be said that since the revision petitioner filed R.C.O.P.No.9 of 1996 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, he did not pay the rent to the landlady and also not deposited in the said Rent Control Original Petition. The very fact that the revision petitioner/tenant paid the rent only on 10.3.1998 after the dismissal of R.C.O.P.No.9 of 1996 on 25.11.1997, there have been supine indifference and callousness on the part of the tenant in payment of rent for the months of February, 1996 to October, 1997 and such default is to be construed as wilful. Even after dismissal of the petition R.C.O.P.No.9 of 1996 on 25.11.1997, the revision petitioner has paid the rent deliberately only on 10.3.1998 and as such, there is wilful default in payment of rent as claimed by the landlady for the months of February, 1996 to October, 1997. The landlady has clearly proved that the revision petitioner as tenant has committed wilful default in payment of rent for the months of February, 1996 to October, 1997 and so the eviction ordered on that ground as confirmed by the learned Rent Control Appellate Authority is very much proper and does not call for any interference. 10. The landlady has clearly proved that the revision petitioner as tenant has committed wilful default in payment of rent for the months of February, 1996 to October, 1997 and so the eviction ordered on that ground as confirmed by the learned Rent Control Appellate Authority is very much proper and does not call for any interference. 10. In the result, this Civil Revision Petition is dismissed with costs, confirming the judgment and decree dated 5.1.2001 made in R.C.A.No.2 of 2000 by the learned Rent Control Appellate Authority.