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2005 DIGILAW 1038 (MAD)

Nangayarammal & Another v. Lalitha Shenbagam

2005-07-08

M.THANIKACHALAM

body2005
Judgment :- (This petition is preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Tamil Nadu Act 18 of 1960 as amended by Act 23 of 1973 and Act 1 of 1980 against the fair and decreetal order dated 11.10.2004 made in RCA No.6 of 2004 on the file of the Rent Control Appellate Authority/Subordinate Judge, Kovilpatti confirming the fair and decreetal order dated 9.12.2003 made in RCOP No.6 of 2003 on the file of the Rent Controller/District Munsif, Kovilpatti.) The tenants are the revision petitioners. 2. The respondent herein, as landlord, has filed RCOP No.6 of 2003 on the file of the Rent Controller (District Munsif), Kovilpatti, seeking an eviction order against the revision petitioners on the ground of willful default, under Section 10(2)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, hereinafter called "the Act". The non-payment of rent, which is sought to be labelled as willful default, giving a ground for eviction, has spread over only for five months, i.e. from May, 2002 to October, 2002. 3. The revision petitioners/tenants opposed the application, admitting the non payment of rents, for the said period, contending that when they attempted to deposit the rent into the Court, the Court refused to issue lodgment schedule and that the non payment of rent has occasioned due to ill-health, and therefore the non payment should not be considered as willful default, entitling the landlord to get an order of eviction. 4. The Rent Controller as well as the Appellate Authority, concurring with the case of the landlord, rejecting the contention of the revision petitioners/tenants, ordered eviction concurrently, thereby causing grievance to the tenants. Both the courts have come to the conclusion that the tenants, having admitted the arrears of rent, failed to explain satisfactorily for their non payment in time and in this view, considering the specific order of the court in the previous proceedings, the non payment of rents, though it is for a period of five months, should be construed as willful default. In this way, eviction order came to be passed concurrently, which is under challenge in this revision. 5. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 6. In this way, eviction order came to be passed concurrently, which is under challenge in this revision. 5. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 6. The learned counsel for the revision petitioners submitted that though there was some default in not depositing the rent into the court, as directed or not tendering the rents, considering the period of non payment of rents, as well as the reasons assigned for the non payment, the same should not be construed as willful default, since there was no intention on the part of the tenants to commit such default, which were not properly considered by the courts below. 7. This submission is sought to be repelled by the learned counsel for the landlord urging that in view of the proceedings initiated by the tenants and in view of the further fact that they have obtained an order for depositing of rent, non compliance of the same should be construed as willful default, since the parties were aware and conscious of the fact, about their right and duties also. Such person, despite the order of the court, if fails to pay the rents periodically, as per the contract between the parties or as per the direction of the court, it has to be construed only as willful default and no concession could be given, considering the periods of non payment of rents, since the period is immaterial, to construe whether the default is willful or not. 8. It is an admitted position that the tenants have to pay the rents, commencing from 19th of English month and ending with 18th of succeeding month. It is also an admitted fact, that from 19th May, 2002 to 18th October, 2002, for five months, rents were not paid or deposited. It seems, there was some dispute between the parties, resulting the landlord, refusing to receive the rent, when tendered. Therefore, the tenants, who are conscious of their right, probably, obligations also under the Act, invoked the provisions of Section 8 of the Act, by filing RCOP No.6 of 2001, seeking permission to deposit the rents, since the landlord failed to receive the same. Therefore, the tenants, who are conscious of their right, probably, obligations also under the Act, invoked the provisions of Section 8 of the Act, by filing RCOP No.6 of 2001, seeking permission to deposit the rents, since the landlord failed to receive the same. The case of the tenants was accepted by the Court and the tenants were permitted to deposit the rent every month and the deposit should be each and every month and not an accumulated deposit, unless it is agreed or ordered so. No case is projected here, as if permission was granted by the court for depositing the accumulated rent, or after passing of the order, the landlord had agreed to deposit the accumulated rent whether it is five months or less. 9. This being the position, as per the terms of the agreement, which was recognized by the court in RCOP No.6 of 2001, the tenants should have deposited the rent periodically, which they failed to do so, admittedly. When they attempted to tender five months rents, for which they sought for lodgment schedule, which was rightly refused by the rent controller also in RCOP No.6 of 2001. Now, this is taken advantage of by the landlord to label the tenant as willful defaulter. Therefore, we have to see, under the above said backdrop of the case, whether non payment of rent would amount to willful default. 10. Section 10(2) of the Act says, if the tenant has not paid or tendered rent, within 15 days after the expiry of the time fixed, by the last day of the month next following that for which the rent is payable, the landlord is entitled to an order of eviction, construing the same as willful default. Proviso gives power to the controller, that if he is satisfied that the tenant's default to pay or tender rent was not willful, he can give reasonable time to the tenant for payment of rent due by him to the landlord and on such payment, the application shall be rejected. Proviso gives power to the controller, that if he is satisfied that the tenant's default to pay or tender rent was not willful, he can give reasonable time to the tenant for payment of rent due by him to the landlord and on such payment, the application shall be rejected. In this case, the rent controller as well as the appellate Authority have not satisfied themselves that non payment of rent is only an ordinary default, whereas they have come to the conclusion, it is willful, and therefore, they have failed to invoke the proviso, for which this Court cannot find fault with, though some grievance is expressed, placing reliance upon the above said proviso. In view of the admitted fact, it is seen, the act of the tenants comes within Section 10(2)(i) of the Act. 11. The learned counsel for the revision petitioner, in order to escape from the consequences of the non payment of rent, relied on a decision of the Apex Court in S.Sundaram Pillai, etc. Vs. V.R.Pattabiraman ( AIR 1985 SC 582 ), wherein more or less a definition has been given, for willful default, which reads, "Thus, a 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." 12. It is true, as said by the Apex Court, willfulness implies a conscious failure to observe care, knowing consequences also. If that is so, it should be presumed, though non-payment of rent is only for five months, it should come within the meaning of willful default. If it is the case of the tenants, that they are not aware of the consequences of non payment of rent or the non payment of rent was due to unavoidable reason beyond their control, then some concession could be given and not otherwise. 13. As held by this Court in Nagammal Vs. If it is the case of the tenants, that they are not aware of the consequences of non payment of rent or the non payment of rent was due to unavoidable reason beyond their control, then some concession could be given and not otherwise. 13. As held by this Court in Nagammal Vs. Boomi and another (2002-4-L.W. 150), the deposit of arrears of rent in the court on the first hearing alone, as a universal rule, cannot absolve the willful default already committed and the same should depend upon the facts and circumstances of the case. 14. True, as observed by the Apex Court in C.Chandramohan Vs. Sengottaiyan (Dead) by Lrs. and others (2000-I-CTC 239), willful default to pay or tender rent is mixed question of law and fact and the High Court is competent to interfere with such finding and reverse the same, if it is shown that the findings recorded by the Rent Controller or the Appellate Authority are erroneous, illegal or perverse, which are not available in the case on hand. 15. As said above, when the landlord refused to receive the rent or something like that, the tenants rushed to Court, and sought permission to deposit the rent, thereby showing their awareness and consequences of non payment of rent also. Since they felt even if the landlord refused to receive the rent, there may be possibility, for the landlord to seek eviction on the ground of willful default, and only to avoid it very cleverly, of course which they are entitled to do, a petition has been filed and order has been obtained. This being the position, the tenants should have been very careful in depositing the rent also periodically. 16. In this case, admittedly, they have failed, which would go to show, that they have failed to deposit the rents deliberately, being aware of consequences also, thereby coming within the meaning of consciously also. It can be argued, whether the tenants, who had already approached the court for depositing the rents, would have slept from depositing the rent, inviting willful default, unless they are unavoidably prevented. This query could be explained, if unavoidable reasons are exposed. It can be argued, whether the tenants, who had already approached the court for depositing the rents, would have slept from depositing the rent, inviting willful default, unless they are unavoidably prevented. This query could be explained, if unavoidable reasons are exposed. An attempt was made to explain, as if the tenants were suffering some ill-health, which prevented them from depositing the rents, which was not accepted by the courts below, for the reasons recorded, in which I am unable to find any error to interfere. 17. Admittedly, no satisfactory evidence has been let in to prove the illness of the tenants, which would have prevented them, from depositing the rent, as directed by the court. Thus, it is made out, the tenants have failed to obey the order of the court and that they have also failed to tender or deposit the rent, as agreed and as directed by the court, which should come within the meaning of willful default. The courts below, considering all these aspects in detail, have recorded a finding, concurrently, based on evidence, which is not liable to be upset, under the revisional jurisdiction of this court, since no perversity is also noticed. 18. In this view, the revision is devoid of merits and the same is dismissed, confirming the order of the courts below. Time for eviction is three months from today. No costs.