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Madras High Court · body

2007 DIGILAW 635 (MAD)

Halimunnisa v. Pervise Ahamed & Another

2007-02-21

R.BANUMATHI

body2007
Judgment :- Aggrieved by the order of Eviction passed on the ground of Wilful Default, the Tenant has preferred this Civil Revision Petition. For convenience, the parties are referred to in their original rank in R.C.O.P.No.19 of 1992. 2. 1. The demised premises – Shop bearing Door No.54, Main Bazaar, Vellore originally owned by Sherfunnisa Begum – the Petitioners Grandmother. The premises was taken on lease by the Husband of the Respondent / Tenant originally for rent of Rs.350/- p.m. and the rent was later raised to Rs.600/- p.m. 2. 2. Case of Petitioner is that Sherfunnisa Begum – Grandmother of Petitioner died leaving behind her Husband and Son – Father of the Petitioner, who are the sole heirs, who inherited the property. The Respondent / Tenant attorned tenancy to the Petitioners Father and was paying the rent to him only for two months. The Petitioners Grandfather and Father had executed a Gift Deed to the Petitioner in respect of the demised property under Settlement Deed dated 30.05.1990. The Respondent has paid the rent to the Petitioner for two months - August and September 1990. The Petitioner has filed R.C.O.P.No.8 of 1991 for eviction on the ground that the Petitioner requires the premises for his own use and occupation. Aggrieved over filing of Eviction Petition, the Respondent / Tenant committed default in payment of rent. The Tenant has paid the rent only till July 1991 and committed default from August 1991. After committing default in payment of rent, the Respondent issued Notice on 112. 1991 alleging as if there is cloud upon the Petitioners Title, which was suitably replied by the Petitioner. 3. The Petitioner has filed R.C.O.P.No.19 of 1992 (in April 1992) for eviction under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (for short "the Act") on the ground of Wilful Default in payment of rent from August 1991. The Respondent has filed R.C.O.P.No.51 of 1992 (in September 1992) under Section 9(3) of the Act, seeking permission to deposit the rent into Court along with arrears of rent. During the pendency of the proceedings, the Petitioner / Landlord sold the demised premises to the Second Respondent. .4. The Rent Controller allowed both R.C.O.Ps and ordered eviction on both grounds – Own use and occupation and Wilful Default. During the pendency of the proceedings, the Petitioner / Landlord sold the demised premises to the Second Respondent. .4. The Rent Controller allowed both R.C.O.Ps and ordered eviction on both grounds – Own use and occupation and Wilful Default. The Respondent / Tenant has preferred R.C.A.No.26 of 1993 challenging the order of eviction on the ground of Own use and Occupation; R.C.A.Nos.27 of 1993 challenging the order of eviction on the ground of Wilful Default. Pointing out the sale of demised premises to the Second Respondent, the Appellate Authority allowed the Appeal in R.C.A.No.26 of 1993 preferred against the order of eviction on the ground of Own use and Occupation. The Appellate Authority confirmed the order of eviction on the ground of Wilful Default, which is challenged in this Revision Petition. 3. Assailing the order of eviction, learned counsel for the Revision Petitioner has contended that mere default would not amount to wilful default. It was submitted that after death of Sherfunnisa Begum, the Tenant had reasonable doubt about the Title of the Property and who was the Landlord subsequent to the death of Sherfunnisa Begum and hence, the Tenant could not make payment of rent and it cannot be said that the default was wilful default. It was further submitted that the Appellate Authority has failed to appreciate that there is no deliberate intention in not paying the rent. 4. Despite opportunities none appeared for the Respondents. Names of Respondents were printed in the cause list. 5. I have carefully examined the records and given thoughtful consideration to the submissions made on behalf of the Revision Petitioner. 6. Tenancy is not disputed. The Landlady Sherfunnisa Begum passed away on 08.03.1990 leaving behind her Husband and her Son viz., Petitioners Father. The Petitioners Grandfather and Father had executed Ex.A.1 – Registered Gift Deed (dated 30.05.1990). The Tenant has doubted about ownership of the Petitioner. The Respondent / Tenant has committed default in payment of rent from August 1991 till the filing of R.C.O.P.No.19 of 1992 in April 1992. .7. It is the duty of the Tenant to pay the rent regularly every month without expecting any demand from the Landlord. The Rent is payable as and when due and it is the obligation of the Tenant to pay the rent and in case of failure to pay, the Tenant is a defaulter. .7. It is the duty of the Tenant to pay the rent regularly every month without expecting any demand from the Landlord. The Rent is payable as and when due and it is the obligation of the Tenant to pay the rent and in case of failure to pay, the Tenant is a defaulter. Admittedly, the Tenant was in arrears from August 1991. For the rent payable from September 1991 to August 1992, the Tenant has filed Petition in R.C.O.P.No.51 of 1992 in September 1992 under Section 9(3) of the Act to deposit the arrears of rent in Court and also to deposit the monthly rent. R.C.O.P.No.19 of 1992 seeking eviction of the Tenant on the ground of Wilful Default was filed even in April 1992 by the Petitioner / Landlord. Without tendering the rent to the Landlord in a manner known to law, in September 1992, the Tenant has filed R.C.O.P.No.51 of 1992 under Section 9(3) of the Act for deposit of the rent under the pretext as if there is doubt regarding ownership. By filing a Petition for deposit of rent, the Tenant cannot wriggle out of the situation and consequences of Wilful Default. The Tenant is duty bound to explain as to why she was unable to pay the rent for the period preceding the Rent Control Petition for deposit. 8. Contending that mere default in payment of rent would not amount to Wilful Default, learned counsel for the Tenant has submitted that the rent was not paid only due to bonafide doubt in the Title of the property and who was the Landlord subsequent to the death of Sherfunnisa Begum. Placing reliance upon the decision reported in Hudson Vs. Official Liquidator (A.I.R. 1929 ALLAHABAD 826), it was further submitted that Wilful Act or Default has evidently been used as a description. The intention to convey is that the default is occasioned by exercise of volition due to supine indifference. Learned counsel further submitted that the Tenant has not paid the rent only because of bonafide doubt regarding Title of the demised property after death of Sherfunnisa Begum and default cannot be described as Wilful Default. 9. Undoubtedly, Wilful Default is indicative of some deliberate conduct in omitting to do something either deliberately or by reckless disregard of the fact whether the act or omission was or was not a breach of duty. 9. Undoubtedly, Wilful Default is indicative of some deliberate conduct in omitting to do something either deliberately or by reckless disregard of the fact whether the act or omission was or was not a breach of duty. Wilful Default is a mixed question of law and facts. It was held in the decision reported in Murugan Vs. T.S.Arunagiri and another ( 1999 (1) L.W. 100 = 1999 I M.L.J.154) that once default is admitted, it is for the tenant to prove that he has not committed willful default as it is something which is within his personal knowledge. .10. According to the Tenant, after the death of Sherfunnisa Begum, she had doubts regarding ownership of demised premises and whether the Petitioner is the actual owner of the premises. Sherfunnisa Begum died leaving behind her Husband and her Son (who is Petitioners Father) as Sole heirs inheriting her properties. Both the legal heirs of Sherfunnisa Begum viz., Petitioners Grandfather – Mohammed Hajimudeen Sahib and Petitioners Father – Nazirudeen Sahib have executed Registered Settlement Deed (Hibba) – Ex.A.1 (dated 30.05.1990). Pursuant to the Settlement Deed, mutation was also effected as is seen from Ex.P.9 - House Tax Receipt evidencing payment of house tax by the Petitioner. 11. After the Settlement Deed in favour of the Petitioner, in fact the Respondent / Tenant has paid the rent to the Petitioner by issuing cheques drawn on Andhra Bank -Exs.A.2 to A.4. Having so acknowledged ownership of the Petitioner, the Tenant had no basis for doubting the ownership of the Petitioner. That apart Ex.A.1 being a Registered Settlement Deed, it must be construed that the Tenant had constructive notice of the Settlement Deed. Exs.A.6 to A.8 are the Covering Letters written by Father of Respondent / Tenant for sending the Cheques for the rent payable. We may usefully refer to Ex.A.5 – Correspondence (dated 16.05.1991) written by Tenants Father stating that out of the rent payable, tax of Rs.370/- was paid and for the balance of Rs.280/-cheque was issued drawn on Andhra Bank. Tenants Father sending cheques to the Petitioner for the rent payable clearly establishes that the Respondent / Tenant had knowledge of Settlement Deed in favour of the Petitioner and ownership. By her conduct, Tenant has attorned the Tenancy to the Petitioner by making payment of rent. The contention of the Tenant that she had doubt regarding ownership of demised premises lacks bonafide. By her conduct, Tenant has attorned the Tenancy to the Petitioner by making payment of rent. The contention of the Tenant that she had doubt regarding ownership of demised premises lacks bonafide. 12. As noticed earlier, R.C.O.P.No.8 of 1991 was filed for Eviction on the ground of Own Use and Occupation. When an Eviction Petition was filed and pending, it was the foremost duty of the Tenant to regularly pay the rent in time especially when there was litigation between the parties. The Tenant ought to have been more vigilant and default in payment of rent in such circumstances has to be construed as wilful default. In similar circumstances, in the decision reported in Vasantha Leela Vs. Vadivelu Chettiar ( 1998 (3) C.T.C. 467 ), RAMAN, J., has held as follows:- "...Therefore, it is clear from the above circumstances that the Tenant ought to have been vigilant in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. The Tenant ought to have been careful and scrupulous in adhering to his duties as a Tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations that went on between the parties and default committed by the Tenant has to be construed as wilful default. The Tenant was aware of the legal consequences of his omission to pay rent. Therefore, he ought to have been more careful. Inspite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. Therefore, any default committed by the Tenant in this context can be nothing but wilful default within the meaning of the Act.." 13. When Tenant was irregular in payment of rent subsequent to the filing of R.C.O.P.No.8 of 1991, that conduct of the Tenant is to be taken into account. Reasons for non-payment of rent from August 1991 till filing of R.C.O.P.No.19 of 1992 in April 1992 are not satisfactorily explained by the Tenant. Learned counsel for the Tenant has contended that the Tenant has taken all bonafide efforts to file Petition under Section 9 (3) of the Act to deposit the arrears of rent and also the monthly rent. Reasons for non-payment of rent from August 1991 till filing of R.C.O.P.No.19 of 1992 in April 1992 are not satisfactorily explained by the Tenant. Learned counsel for the Tenant has contended that the Tenant has taken all bonafide efforts to file Petition under Section 9 (3) of the Act to deposit the arrears of rent and also the monthly rent. Laying emphasis upon deposit of arrears of rent in R.C.O.P.No.51 of 1992, it was submitted that the said Petition was ordered and Landlord has also withdrawn the amount and the same was not viewed in proper perspective by the Appellate Authority. No doubt, the Landlord has withdrawn the arrears of rent deposited in R.C.O.P.No.51 of 1992, but that withdrawal is without prejudice. The Tenant has a legal obligation to tender rent to the Landlord month after month. When the Tenant accumulates arrears and files the Petition under Section 9(3) of the Act, such filing of Petition would not dilute the Wilful Default committed. 14. Both the courts below have concurrently found on facts that the Tenant has committed Wilful Default in making payment of rent. Unless there is perversity in the matter of appreciation of evidence by the Authorities below, exercising revisional jurisdiction under Section 25 of the Act, this Court will not interfere with the concurrent findings. There is absolutely nothing to show that there is perversity in the concurrent findings of the Courts below. This Court finds no reason to interfere with the concurrent findings and eviction ordered on the ground of wilful default. 15. For the foregoing reasons, the Impugned Order dated 31.03.1998 of the Subordinate Judge, Vellore in R.C.A.No.27 of 1993 (arising out of R.C.O.P.No.19 of 1992 on the file of Rent Controller, Vellore) is confirmed and this Civil Revision Petition is dismissed. No costs. 16. After the Court has passed the order, the learned counsel for the Revision Petitioner submitted that the Revision Petitioner is a widow, eking out her livelihood by running the shop and requested for longer time for vacating. 17. In consideration of the submissions, six months time from the date of this order is granted to the Revision Petitioner for vacating and handing over possession to the Respondent / Landlord, subject to the condition that the Revision Petitioner should file an Affidavit within a period of two weeks from today.