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2004 DIGILAW 629 (MAD)

Subam Medicals v. Dr. (Mrs. )Zubaida Begum

2004-04-05

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The revision petitioner is the tenant and the revision is directed against the order of eviction on the ground of wilful default in payment of rent by the learned Rent Control Appellate Authority reversing the dismissal of the Rent Control Original Petition by the learned Rent Controller. 2. The respondent herein filed the Rent Control Original Petition to evict the revision petitioner from the petition non-residential premises bearing door No.56, Triplicane High Road, Triplicane, Madras-5 on the ground of wilful default in payment of rent. It is stated in the petition that the rent for the petition premises is Rs.1,150/- per month and the revision petitioner became a tenant as per the unregistered lease deed dated 20.2.1991 and further stating that he is a chronic defaulter in payment of rent even from the inception of the tenancy and the rents have been paid after several demands that too irregularly. It is also stated that Rs.3,450/- towards rent for the months of February, 1993 to April, 1993 was paid and thereafter the rent from May, 1993 to November, 1994 for 19 months amounting to Rs.21,850/- has not been paid and such non-payment of rent is wilful, deliberate and therefore the tenant is to be evicted on the ground of wilful default on payment of rent as claimed. 3. The petition was resisted in the counter that the respondent herein is not an individual owner of the petition premises, but belongs to a private limited company under the name and style of "Shifa Hospital and Research Centre". In the counter it is further stated that the respondent herein is not the landlady of the petition premises, but it is admitted that he is a tenant in respect of the petition premises. The revision petitioner is running a medical shop in which Messrs. Shifa Hospital and Research Centre used to purchase life saving medicines and other medicines on credit and the amount due to the revision petitioner towards such purchase of medicines was adjusted in the rent payable. The rental receipt was issued in April, 1993 towards the rent for the months of February, 1993 to April, 1993 after adjusting the medicines purchased and in fact, there is no actual payment by cash or cheque towards the rent for the months of April and May, 1993. The rental receipt was issued in April, 1993 towards the rent for the months of February, 1993 to April, 1993 after adjusting the medicines purchased and in fact, there is no actual payment by cash or cheque towards the rent for the months of April and May, 1993. Accordingly, the rent payable for May, 1993 to November, 1994 was also adjusted in the amount payable by the respondent herein towards purchase of medicines, but, however, on receipt of notice dated 4.12.1994, the tenant sent demand draft for Rs.23,000/- inclusive of the rent from May, 1993 to December, 1994 on 21.1.1995 which was accepted. Therefore, in the circumstances, the tenant has not committed default much-less wilful default in payment of rent from December, 1993 to November, 1994. 4. The learned Rent Controller considering the evidence of P.W.1, Abdul Basith Khan and Exs.P-1 to P-20 marked on the side of the landlady and that of the evidence of the tenant Ramanathan examined as R.W.1 on the side of the tenant and Exs.R-1 to R-20 marked on the side of the tenant, dismissed the Rent Control Original Petition, recording finding that the tenant has not wilfully denied the title of the landlady and merely stated considering the rental receipts Exs.R-4 to R-8, in that the respondent herein received the rental amount on behalf of the "Shifa Hospital and Research Centre" and further recording that inasmuch as the entire arrears of the rent has been paid as per Ex.P-3 dated 21.1.1995 on receipt of Ex.P-1, the default committed for the months of May, 1993 to November, 1994 by the tenant cannot be considered as wilful. In the appeal, the learned Rent Control Appellate Authority reversing the finding of the learned Rent Controller ordered eviction on the ground of wilful default in payment of rent from May, 1993 to November, 1994 and finding that the respondent herein is the landlady in respect of the petition premises considering Ex.R-1 dated 20.2.1991, Ex.R-2 dated 18.1.1989 and Ex.R-3 dated 15.2.1988 as per which, the respondent herein entered rental agreement with the revision petitioner. The order of the learned Rent Control Appellate Authority in ordering eviction from the petition premises by allowing the Rent Control Appeal is challenged in this Civil Revision Petition by the tenant. 5. The learned counsel for the revision petitioner/tenant contended reiterating the stand taken in the counter and in the evidence. The order of the learned Rent Control Appellate Authority in ordering eviction from the petition premises by allowing the Rent Control Appeal is challenged in this Civil Revision Petition by the tenant. 5. The learned counsel for the revision petitioner/tenant contended reiterating the stand taken in the counter and in the evidence. The learned counsel further submitted that inasmuch as the entire arrears of rent, viz., for the months of May, 1993 to December, 1994 was paid under Ex.P-3 on 21.1.1995 after receiving notice Ex.P-1 dated 14.12.1994, such default in payment of rent is not to be constructed as wilful. The learned counsel further contended that inasmuch as, in the rental receipts, the respondent singed that the amount was received for "Shifa Hospital and Research Centre", there is no relationship of landlady and tenant between the parties. The learned counsel for the revision petitioner/tenant relied on the decision Chordia Automobiles – vs. - S.Moosa and others reported in (2000)3 Supreme Court Cases 282, in which, the Apex Court has ruled:- "Explanation 1 to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has given a benefit to a tenant viz., if there is default in payment of rent and a notice is sent by the landlord of such default, then the default would mature into a wilful default only if the default continues; in other words, the defaulted amount is not paid within a period of two months from the date of notice." 6. The learned counsel for the respondent vehemently contended that there was no practise to adjust the rental amount once in 3 or 4 months at the time of settlement of bills towards purchase of medicines by Shifa Hospital and Research Centre. Admittedly the rent for the months of May, 1993 to November, 1994 was not paid till the date of filing of the Rent Control Original Petition and as such, such default is wilful, deliberate and intentional, despite the fact entire arrears of rent was paid on 21.1.1995 under Ex.P-3. Admittedly the rent for the months of May, 1993 to November, 1994 was not paid till the date of filing of the Rent Control Original Petition and as such, such default is wilful, deliberate and intentional, despite the fact entire arrears of rent was paid on 21.1.1995 under Ex.P-3. As regards the denial of title of the respondent in respect of the petition premises, the learned counsel submitted that the rental agreements as per Exs.R-1 to R-3 have been entered into between the revision petitioner and the respondent herein and in fact, the landlady, the respondent herein, has purchased the property under the sale deeds Exs.P-16 to P-20 and the property also stands in the name of the respondent herein as revealed in the encumbrance certificate Ex.P-13. Despite such fact, since the revision petitioner/tenant denied the title of the respondent herein, according to the learned counsel he is to be evicted on that ground since such denial is not bona fide. The learned counsel relied on the decision Julikabi (died) and another – vs. - Vairavan reported in 2000 M.L.J. 474, in which this Court has held:- "The Supreme Court held that the denial of the title during the course of proceedings itself is a ground for eviction and no amendment of pleading is required and in that proceeding itself, eviction could be ordered. The denial of the title in the course of eviction proceedings constitutes a ground for eviction when it is proved that such denial is not bona fide. Therefore, the petitioner is entitled to an order of eviction in the present case on the ground that the respondent denied the title of the petitioner to the petition mentioned building in the course of the eviction proceedings and such denial of the petitioner's title by the respondents is not bona fide. In these circumstances, the order of eviction passed by the Rent Controller and the Appellate Authority can be sustained though not on the ground that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is bona fide, but on the ground that the respondents in the course of the eviction proceedings denied the title of the petitioner to the superstructure of the petition mentioned premises and such denial is not bona fide." 7. As rightly pointed out by the learned Rent Control Appellate Authority, the agreements of tenancy was entered into between the revision petitioner and the respondent herein under Ex.R-1 dated 20.2.1991, Ex.R-2 dated 18.1.1989 and Ex.R-3 dated 15.2.1988 and such agreements were entered into by the respondent herein in an individual capacity and not as any other capacity such as in the capacity and for Shipa Hospital and Research Centre. P.W.1 also deposed accordingly. R.W.1 also admitted in his evidence that the rent is paid only to the respondent herein, as such, there have been relationship of landlady and the tenant between the parties. Despite such fact, the tenant denied the title in respect of the petition premises to the respondent/landlady without bona fide and on that ground also the tenant is to be evicted, though the eviction petition was not filed on that ground, I am in respectful agreement with the decision of this Court (2000 M.L.J. 474) referred to above by the learned counsel for the respondent. 8. It is not in dispute that the tenant committed default in payment of rent from May, 1993 to November, 1994 at the rate of Rs.1,150/- per month and it is not also disputed that the rent for the said months was paid only on 21.1.1995 under Ex.P-3 after issuing notice Ex.P-1 dated 14.12.1994. The Rent Control Original petition was filed on 20.12.1994. According to the tenant, Shifa Hospital and Research Centre used to purchase medicines and the amount payable is adjusted in the rent payable once in 2 or 3 months. In fact, according to the tenant, the rental receipt was issued in respect of February, 1993 to April 1993 for three months by adjusting the amount payable towards payment of medicines purchased from the tenant and in fact no amount in cash or cheque was paid towards rent for the months of April and May, 1993. Though it is the specific case of the tenant as stated in paragraph 7 of the counter that the rent payable for the period from May, 1993 to November, 1994 was adjusted as such, on that aspect, there is no acceptable evidence that amount was due and payable for the tenant by way of purchase of medicines from the tenant by Shifa Hospital and Research Centre. Even assuming that there was such arrangement between the tenant and the respondent/landlady, it does not stand to reason how such amount can be adjusted in the rent payable to the respondent/landlady. 9. As regards the contention put-forth for the tenant that in any event since he has paid the entire arrears of rent for the months of May, 1993 to December, 1994 under receipt Ex.P-3 and after receipt of notice under Ex.P-1 dated 14.12.1994 and so such default cannot construed as wilful, there is no force in the said contention. As per the Act the tenant is expected to pay rent every month regularly. Since, the entire arrears of rent for the months from May, 1993 to November, 1994 along with the rent for December, 1994 was paid on 21.1.1995 under Ex.P-3 after the notice Ex.P-1 dated 14.12.1994, it cannot be said that such default admittedly committed in payment of rent from May, 1993 to November, 1994 is not deliberate, intentional or wilful. No satisfactory explanation was offered for such non-payment of rent for the relevant period. The very fact that the entire arrears of rent for the months of May, 1993 to November, 1994 was paid under Ex.P-3 on 21.1.1995 would clinch the issue in favour of the landlady that in making payment as such, there have been supine indifference and callousness on the part of the tenant and such default committed is deliberate, wilful and intentional. 10. Even in the judgment relied on by the learned counsel for the revision petitioner (Chordia Automobiles – vs. - S.Moosa and others reported in (2000)3 Supreme Court Cases 282), in paragraph 9, it is extracted the decision of the Apex Court reported in S.Sundaram Pillai – vs. - Pattabiraman reported in (1985)1 S.C.C. 591 thus:- "... 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. 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 Act or by other Acts referred to above." Here, in this case also the tenant knowing fully well that he has to pay the rent every month regularly, paid the rental arrears from May, 1993 to November, 1994 only on 21.1.1995 under Ex.P-3 and such default committed is to be construed as wilful, in that the non-payment of rent by the tenant is intentional, deliberate and with full knowledge of legal consequences. Considering all these facts, the learned Rent Control Appellate Authority ordered eviction on the ground of wilful default in payment of rent from May, 1993 to November, 1994. Such order does not call for any interference. 11. Further the respondent herein is also entitled for order of eviction on the ground of denial of title without bona fide. The landlady, the respondent herein filed the Rent Control Original Petition claiming that she is the landlady and the tenant was put on notice and he contested the Rent Control Original Petition denying the title and setting out the case that the agreement is only with the respondent herein, but the rental receipts have been issued by the respondent herein for Shifa Hospital and Research Centre. It appears from Exs.R-1 to R-3, the rental agreements entered into between the landlady and the tenant and the rental receipts issued under Exs.R-4 to R-8 that it is only the respondent herein who as the owner fit in the definition of "landlord/landlady" under Section 2(6) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, though the Rent Control Original Petition is not filed seeking eviction on the ground of denial of title, the respondent herein is also entitled for eviction on the ground of denial of title without bona fide. 12. Therefore, though the Rent Control Original Petition is not filed seeking eviction on the ground of denial of title, the respondent herein is also entitled for eviction on the ground of denial of title without bona fide. 12. In the result, this Civil Revision Petition is dismissed with cost, confirming the judgment and decree dated 18.1.2001 passed in R.C.A.No.61 of 1997 by the learned Rent Control Appellate Authority.