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2004 DIGILAW 544 (MAD)

N. Boraiah v. N. Eswaran

2004-03-26

M.THANIKACHALAM

body2004
ORDER: The landlord, unable to evict the tenant before the Courts below, has moved this Court, for the same relief, as revision petitioner. 2. The petitioner/landlord attempted to evict the tenant on four grounds viz., that, (1) the tenant had committed willful default; (2) the tenant had committed or caused to be committed acts of waste, which are likely to impair materially the value of the building; (3) the tenant is guilty of causing nuisance to the occupier, and (4) the building is required for the occupation of his son, who is doing a business. 3. The default period, which is stated as willful commences from 1.7.1996, till the date of filing of the petition, amounting to Rs.24,000. The acts of waste or damages alleged are that physical abuse and unauthorised storage of water, which had caused damage to the building. The guilty act of the tenant alleged is that he had caused nuisance to one of the tenants of the building, by allowing the water to leak, thereby inflicting sufferings to the other tenants also. Owner’s occupation is aimed on the ground that the landlord’s son is having a tea manufacturing factory, for which he is not having a premises of his own at Ooty, the further fact being, not owning any non residential building of their own. 4. The tenant/respondent opposed the above application, generally denying all the allegations and calling the landlord to prove the same strictly. 5. The Rent Controller as well as the Rent Control Appellate Authority, after going through the materials placed before them, were unable to satisfy themselves, regarding the grounds leveled, for the eviction of the tenant. In this view of the matter, the dismissal of R.C.O.P. was confirmed by the Rent Control Appellate Authority and the said orders are under challenge in this revision. 6. Heard, the learned counsel for the petitioner, Mr.M.S.Krishnan and the learned counsel for the respondent, Mr.A.Bobblie. 7. In this view of the matter, the dismissal of R.C.O.P. was confirmed by the Rent Control Appellate Authority and the said orders are under challenge in this revision. 6. Heard, the learned counsel for the petitioner, Mr.M.S.Krishnan and the learned counsel for the respondent, Mr.A.Bobblie. 7. The learned counsel for the revision petitioner/landlord submits, that admittedly, there was default in payment of the monthly rent from 1.7.1996 and even during the pendency of the eviction proceedings also, the tenant was not regular in paying the rent, despite this fact, both the Courts below have committed an error, in not ordering eviction, which is against the evidence, warranting to label that decision, though concurrent, as perverse, and in this view, this Court should interfere, under the revisional jurisdiction, to set it right. 8.Per contra, the learned counsel for the tenant/respondent submits, that though there was some delay in the payment of rent, the same was not caused due to the fault of the tenant and this delay had occurred, due to the practice prevailed between the tenant and the landlord, in collecting the rent in a lump sum, which could not be labelled as willful default, imposing the penalty of eviction. 9. By going through the materials available on record, as well as scanning the orders of both the Courts below, I am constrained to say, that the Courts below have not properly approached the case, applying the correct provisions of law, resulting injustice to the landlord and in this view, interference of this Court, under Sec.25 of the Act, is inevitable. 10. It is the specific case of the landlord in paragraph 4 of the petition, that the tenant had failed to pay monthly rent from 1.7.1996, amounting to Rs.24,000 up to the end of February 1997, which is labeled as willful default. For this, the answer in the counter is that the allegations made in paragraph 4 of the petition is false and the petitioner is put to strict proof. Except this, I find no allegations, contradicting the period of default, quantum of rent, etc. For this, the answer in the counter is that the allegations made in paragraph 4 of the petition is false and the petitioner is put to strict proof. Except this, I find no allegations, contradicting the period of default, quantum of rent, etc. Here is a peculiar defence, where the tenant says that the agreed rent is Rs.4,000 p.m., whereas the landlord says the agreed rent between the parties is Rs.3,000 p.m. Whatever may be the contentions of the parties, in this regard, the findings of both the Courts below is that the agreed rent between the parties is Rs.3,000 p.m., as claimed by the landlord, which is not challenged by the tenant, before me. Thus, fixing the agreed rent at Rs.3,000 p.m., default has to be decided, then fixing whether it is willful default, warranting eviction. 11. The respondent/tenant comes within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called ‘the Act’), not in dispute. He claims protection under this Act. The tenant who claims protection, must perform his obligations and duties, under the Act and then only the arms of the Act will protect the tenant, from the onslaught of the landlord, if it is so. On the other hand, if the tenant had failed to perform his duties as agreed or as per the provisions of the law, then we can ignore the complaint from the tenant that the landlord is unnecessarily assaulting him, by invoking the provisions, to evict him from the premises. 12. The agreement between the parties, regarding the payment of rent is on the first day of every month. The respondent/tenant is running a hotel business in the premises. The agreement, so pleaded in paragraph 3 of the application, is not put to challenge. Sec.10(2)(1) of the Act says that the landlord can seek eviction, if the tenant had not paid or tendered the rent, due by him within 15 days after the expiry of the time fixed in the agreement of tenancy or in the absence of such agreement by the last day of month next following that, for which the rent is payable. In this view of the matter, as agreed by the tenant, he ought to have paid the rent on or before 15th of every succeeding month. In this view of the matter, as agreed by the tenant, he ought to have paid the rent on or before 15th of every succeeding month. As spoken by P.W.1 and as concluded by the Courts below, on facts, this tenant had not paid the rent from 1.7.1996 till February 1997 i.e., for eight months, totalling a sum of Rs.24,000. Therefore, I find no difficulty to conclude, that this tenant had committed default in payment of rent, as agreed or under the Act. Therefore, the only question remains is, whether it is a willful default or not. 13. When the landlord has made out a case of default, then it is for the tenant to explain the delay, in order to get relief from the default or not to bring the default within the meaning of willful default. If the tenant fails to give any satisfactory explanation, then I am of the view, a presumption also could be drawn, against the tenant, as if he had committed willful default, in payment of rent and there cannot be any other conclusion, when a statutory tenant seeks protection, violating the terms of the agreement, as well as the provisions of the Act. Unfortunately, both the Courts below have even shifted the burden upon the landlord, as if he alone has to prove that the tenant had committed willful default, forgetting the established fact that the tenant had not paid the rent as claimed and even I can say, as admitted by the tenant also. Both the Courts below have come to the conclusion that the tenant had committed default in payment of rent. But they have explained the default, as if it is not willful, which appears to be against the tenor of the Act, as well as against the conduct of the tenant. In this context, we have to see when the arrears of the rent have been paid and what is the subsequent conduct of the tenant. 14. Before filing the petition, a notice was also issued, which also failed to realise the arrears of rent. It seems through the relative, the tenant had issued a cheque for Rs.9,000 and when the landlord had presented the cheque for collection, it bounced, thereby showing that the tenant had more or less cheated the landlord, by issuing a cheque, without sufficient funds in the account. It seems through the relative, the tenant had issued a cheque for Rs.9,000 and when the landlord had presented the cheque for collection, it bounced, thereby showing that the tenant had more or less cheated the landlord, by issuing a cheque, without sufficient funds in the account. At least after the dishonour of the cheque, he ought to have paid the rent, which is also not done in this case. If the tenant is a bonafide person, not able to pay the rent as agreed, due to unavoidable reasons, then he ought to have deposited the rent, at least on receipt of summons. This procedure is also not followed in this case. As seen from the materials available on record and as recorded by the Courts below, the tenant had not paid the entire arrears till 3.8.1999, even after the filing of the R.C.O.P. Since the tenant had not paid the rent, the landlord had moved a petition under Sec.11(4) of the Act and pending that petition, it seems on 2.2.1999, a sum of Rs.90,000 had been paid and thereafter, after six months on 3.8.1999, a further sum of Rs.15,000 had been paid. Thus, it is seen, for 35 months, the tenant had not paid the rent, despite the fact, proceedings were initiated on the ground of willful default. If this kind of tenant is not to be labeled as willful default, I think there cannot be any other tenant. But, both the Courts below have condoned the delay, as a matter of right, which is not acceptable to me. 15. In the petition, as aforementioned, a specific case is projected, regarding the payment of monthly rent by every month. It is not the case of the tenant, in the counter, that there was an agreement between the parties, for the payment of rent, in a lump sum periodically. In the counter, no such plea is also taken. Though a faint attempt was made in the counter, to say that heavy amount is with the landlord as advance, it is not the case of the tenant that because of the deposit available with the landlord, more than the amount prescribed under the law, he is entitled to adjust the same and in this view, he should be relieved of the penalty of eviction. In the counter, though it is said so, the tenant had not disclosed the huge sum of amount said to have been received by the landlord. It is also not the case of the adjustment giving particulars. Therefore, the contention of the learned counsel for the tenant, that the landlord used to collect the rent periodically, after accumulation and only in this way, the rents were paid and therefore, it could not be labeled as willful default are against the facts. In the absence of pleadings and acceptable evidence also, this plea at bar cannot be countenanced. Assuming, in the absence of the agreement, by practice or so, the landlord was no lenient, to collect the rent in a lump sum, that will not give a right to the tenant, to pay the rent against the provisions of Sec.10(2) of the Act. At least when the landlord had complained, by issue of notice, as well as by filing a Rent Control Application, on the ground of willful default, then the tenant ought to have deposited the rent forthwith, showing his bona fide. Here is a tenant, who has not cared to pay the amount, till a petition under Sec.11(4) of the Act was filed and only after two years or so, he had cleared the arrears of rent. This non-payment of rent, for more than two years, should be construed as willful default and there cannot be any other nomenclature for this non-payment of rent. 16. Both the Courts below have taken a strange view, that P.W.1 had not spoken about the willful default. The Courts cannot expect the exact legal phraseology from the litigants. The litigants are expected to give the facts and it is for the Courts, to fit the facts within the frame of the law, to find out, whether that facts will lead to the conclusion, such as whether the tenant had committed willful default or not. P.W.1, as seen from the deposition, had stated, that the tenant had not paid the rent regularly, that the cheque given for Rs.9,000 was bounced and that even after the notice, the tenant had not paid the rent. P.W.1, as seen from the deposition, had stated, that the tenant had not paid the rent regularly, that the cheque given for Rs.9,000 was bounced and that even after the notice, the tenant had not paid the rent. It is the further case of P.W.1 that only after a petition has been filed under Sec.11(4) in the year 1998 and after 5 months a sum of Rs.9000 was paid thereafter on 2.2.1999 a sum of Rs.90,000 was paid and thereafter on 3.9.1999, a sum of Rs.15,000 was paid. It is the further case of P.W.1, also that the tenant had not paid the rent with an intention not to pay the rent and the relevant tamil portion reads Unfortunately, both the Courts below have not read the oral evidence of P.W.1 in its proper perspective, thereby landed themselves in an erroneous conclusion, as if P.W.1 had failed to speak about the willful default. Considering the admitted facts, that the tenant had not paid the arrears of rent more than Rs.1 lakh for two years, the irresistible conclusion should be that the tenant had committed willful default in payment of rent. 17. For the foregoing reasons, I conclude both the Courts below have rendered a perverse finding, though concurrent, against the evidence regarding willful default and in this view, the finding is liable to be set aside, labeling the tenant as willful default, warranting eviction under Sec.10(2)(1) of the Act. 18. The landlord though projected three other grounds for evicting the tenant, had failed to substantiate the same, as rightly observed by the Courts below. The need for personal occupation ceases, since the petitioner’s son is not doing any business, is admitted. Further as admitted by P.W.1, there are other vacant buildings also. On this fact also the ground under Sec.10(3)(a)(i) of the Act is not available. Regarding the other grounds viz., acts of waste and nuisance also, remain in dead letters, for want of evidence. The learned counsel for the revision petitioner fairly has not pressed these grounds, except the ground of willful default. In this view of the matter, the eviction not, ordered by the Courts below under the above said three grounds are sustained. For the foregoing reasons, the revision petition succeeds and the tenant is liable to be evicted. The learned counsel for the revision petitioner fairly has not pressed these grounds, except the ground of willful default. In this view of the matter, the eviction not, ordered by the Courts below under the above said three grounds are sustained. For the foregoing reasons, the revision petition succeeds and the tenant is liable to be evicted. The result therefore, is the revision petition is allowed, setting aside the orders of the Courts below, ordering eviction, directing the tenant to vacate the premises within four months from this date, with costs throughout.