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2006 DIGILAW 2466 (MAD)

R. Ravichandran v. G. Bhuvaneswari Ammal

2006-09-19

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition is filed against the Judgment and Decree passed in R.C.A.No.502 of 2005, dated 15.03.2006 by the Learned VII Judge, Court of Small Causes at Chennai, (Rent Control Appellate Authority), Confirming the fair and decreetal order passed in R.C.O.P.No.949 of 2004, dated 10.02.2005 passed by the XIII Judge, Court of Small Causes at Chennai (Rent Controller). The petitioner / tenant aggrieved over the order of eviction passed by the Rent Controller and the Appellate Authority has come forward with this Civil Revision Petition. 2. The brief facts of the case are as follows: The petitioner is the tenant and the respondent is the landlady. Earlier, the respondent filed R.C.O.P.No.773 of 1993 against the petitioner and the other tenants to evict him and for demolition and reconstruction. But, he was not successful in the said R.C.O.P. Since the petitioner / tenant committed default in payment of rents, he filed R.C.O.P.No.949 of 2004 to evict the tenant on the ground of wilful default. Even after receipt of summons, on the first hearing, the petitioner remained absent and he was set exparte. He filed an application M.P.No.788 of 2004 to set aside the exparte order. Meanwhile, the respondent filed M.P.No.875 of 2004 under Section 11 (3) of the Act and the Rent Controller passed a conditional order directing the petitioner to pay a sum of Rs.19,600/- towards rental arrears for the period from October 2003 to November 2004. The petitioner complied with the condition. After trial, the petitioner before the Rent Controller contended that he was sick and therefore count not attend the first hearing and since he was out of station for treatment, he was not able to pay the rent and therefore according to him the default of payment of rent, though admitted was not willful. However, the learned Rent Controller came to the conclusion that the petitioner committed willful default in payment of rent and therefore passed an order to evict the petitioner from the premises. Aggrieved over the said order, the petitioner preferred an appeal in R.C.A.No.502 of 2005 before the appellate authority, who by an order dated 15.03.2006 confirmed the order of Rent Controller and dismissed the appeal. Aggrieved over the same, this revision has been filed. 3. Aggrieved over the said order, the petitioner preferred an appeal in R.C.A.No.502 of 2005 before the appellate authority, who by an order dated 15.03.2006 confirmed the order of Rent Controller and dismissed the appeal. Aggrieved over the same, this revision has been filed. 3. Mr.Ashok Menon, the learned counsel appearing for the petitioner would contend that on 28.07.2004, the first hearing date, the petitioner was sick and he was not able to attend the Court and produced Medical Certificate to that effect. Further, the learned counsel would contend that settlement talks are going on between the petitioner and the respondent and therefore it was the respondent who asked the petitioner not to pay the rent, in view of the proposed settlement. 4. As regards the said settlement, evidence was let in before the Rent Controller and the Rent Controller has not believed the settlement, so also the Appellate Authority has not believed the talks of settlement as alleged by the petitioner. The burden is on the petitioner to prove that in view of the settlement arrived between the petitioner and the respondent, the petitioner did not tender the rent. It is not a case of the land lady refusing to receive the rent. Even if the land lady refuses to receive the rent from the tenant, option is open to deposit the same in the Court. But the petitioner has not chosen either to deposit the rent or to pay it to the land lady. What is wilful default has been considered in several cases as follows: 1992-II-MLJ 23 : "wilful default in payment of rent – landlord consenting to collecting rent for two or three months at a time – non payment of rent for 3 months, not a case of wilful default" 1995-II-MLJ-211 : "Unless the element of indifference which is wanton and deliberate, besides being designed is provable and proved in the attitude of the tenant, it cannot be said that all defaults made in payment of rent are to be automatically characterised as wilful default – no adoption of procedure prescribed u/s. 8 does not throw any light on want of bonafides of tenants – Sec. 8 (5) held not mandatory" 5. The Hon'ble Supreme Court in 1985 SC 582 (S.Sundaram v. V.R.Pattabiraman) has observed as follows: " a) there should be a default to pay or tender rent, b) the default should continue even after the landlord has issued two months notice claiming the arrears of rent, c) if, despite notice, the arrears are not paid the tenant is said to have committed a wilful default and consequently liable to be evicted forthwith. The correct interpretation would be that, where - 1) no notice, as required by the Explanation, is given to the tenant, the Controller or the Court can certainly examine the question whether the default has been wilful and to such a case the Explanation would have no application. 2) where the landlord chooses to issue two months notice and the rent is not paid then that would be a conclusive proof of the default being wilful unless the tenant proves his incapability of paying the rent due to unavoidable circumstances. The Explanation 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 straightway. 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 cannot be accepted because that would render the very object of Explanation otiose and nugatory. Thus it can be said that where no notice is given by the landlord in terms of the Explanation, the Controller 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 is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days, an if within that time the tenant pays the rent, the application for ejectment would have to be rejected. But 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. " 6. There is no denial that rents were not paid for seven months. Even after receipt of the summons from the Court on the first date of hearing, the petitioner failed to appear in Court and also deposit the rent. As observed by the Appellate Authority, the petitioner should be very vigilant when an earlier attempt of the land lady to evict him under the motion of demolition and reconstruction failed. However, till an conditional order was passed by the Rent Controller, the petitioner did not choose to tender the rent to the respondent or deposit the same in Court. 7. It is also stated in the Appellate Authorities order that even during the pendency of the appeal, he was liable to pay rent from July 2005 to February 2006. These findings would show that the petitioner has gone in default of payment of rent. 8. The Rent Controller and the Appellate Authority have rendered the concurrent finding on the question of wilful default in the payment of rent. In 1999 III MLJ 130 (Sivathanu Pillai v. Subramaniam), this High Court has held as follows: "12. The learned counsel for the respondent / landlord would cite the decisions in (1) Thayammal v. K.Subramaniam (1989) 1 MLJ 407, (2) C.Thangaswamy Nadar v. Pappa, (1988) 2 MLJ 385 and (3) Muktha Bai and others v. P.Adinarayana Chetty, (1989) 1 MLJ 502 , wherein it is held that when there is no explanation for not paying the rent for the entire period, the tenant is said to be committed wilful default. 13. On a careful consideration of the materials found in this case, I find that the conclusion arrived at by the authorities below is correct. 13. On a careful consideration of the materials found in this case, I find that the conclusion arrived at by the authorities below is correct. Moreover, when the authorities below have rendered a concurrent finding on the question of wilful default taking into consideration of the factual details, especially when they have exercised their jurisdiction in accordance with law, I am of the view that there is no merit in this revision." 9. In this case also admittedly, the petitioner has not tendered the rent to the land lady. The alleged settlement talks between the land lady/ respondent herein and the petitioner / tenant is only a wild imagination without any proof. A land lady will not ask the tenant not to pay the rent at any time and making such averment is against the common sense. Therefore only to escape from his liability, the tenant has taken a stand that at the request of the land lady, he did not tender the rent. 10. In the result, I do not find any merits in the Civil Revision Petition and the same is dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is also dismissed. 11. However, Mr.Ashok Menon prays six months time to vacate the premises. The petitioner is directed to file an affidavit to vacate the building within four months and to pay the entire arrears till then.