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2007 DIGILAW 830 (MAD)

K. Muthu v. A. Mohamed Yusuf Khan & Others

2007-03-06

R.BANUMATHI

body2007
Judgment :- Challenging the concurrent findings of Rent Control Authorities, ordering eviction on the ground of wilful default, Tenant has preferred this revision. 2. Case of the Respondents/landlords is that they have purchased the tenanted premises from one Lufia Beevi on 02.02.2001 and notice of attornment was issued to the Tenants. Tenancy is for non-residential purpose on a monthly rent of Rs.650/-. Respondents had obtained an Order of eviction for default period from December, 2000 to October, 2001. For subsequent period of default in paying rent from November, 2001 to December 2001, Respondents have filed eviction Petition under Section 10(2)(i) of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, [for short, the Act]. 3. Tenant resisted the Petition contending that rent is only Rs.625/- and not Rs.650/-and there is no default, much less, wilful default. 4. Parties adduced oral and documentary evidence. In consideration of evidence both Courts found that rent is Rs.625/-. Finding that no satisfactory explanation for nonpayment of rent is given and faulting Tenant for not approaching the Court to deposit rent to establish his bonafide, Rent Controller ordered eviction on the ground of wilful default. Appeal preferred by the Tenant was also dismissed confirming the findings of Rent Controller that the rent payable is Rs.650/-. Appellate Authority observed that when eviction was ordered in earlier RCOP, without expecting demand of rent by landlord, Tenant ought to have paid the rent. 5. Challenging the concurrent findings and placing reliance upon a number of decisions, learned Counsel for the Petitioner/Tenant interalia raised the following contentions:- "Even before filing of Eviction Petition, arrears of rent was paid on 03.02.2003 and landlords have received rent without any protest and there is no wilful default; "Without invoking Sec.11(4) of the Act, Eviction Petition filed for subsequent period of default is not in accordance with the provisions. 6. Countering the arguments, the learned Counsel for the Respondents has submitted that after facing eviction Order in earlier R.C.O.P.No.1727/2001, Tenant ought to have tendered rent month after month and conduct of the Tenant in accumulating rent and paying in lumpsum amply proves wilful default. 7. Submitting that without filing a separate revision the landlord can challenge the findings against landlord, learned Counsel assailed the concurrent findings of Courts below in so far as the finding of rent as Rs.625/- and not as Rs.650/-. 8. I have heard both parties and perused the records. 7. Submitting that without filing a separate revision the landlord can challenge the findings against landlord, learned Counsel assailed the concurrent findings of Courts below in so far as the finding of rent as Rs.625/- and not as Rs.650/-. 8. I have heard both parties and perused the records. 9. Tenancy is not in dispute. It is also not in dispute that Respondents/landlords purchased the tenanted premises under Ex.P-1-Sale Deed dated 02.02.2001. Earlier, R.C.O.P. No.11/2001 was filed against Tenant for eviction on the ground of wilful default for the period from December, 2000 to October, 2001 and for own use and occupation. Despite serving of Notice, Tenant has not entered appearance and eviction was ordered in the RCOP on 17.04.2002. E.P.No.293/ 2002 was filed to execute the Decree in R.C.O.P.No.1727/ 2001. In the execution proceedings, Tenant has entered appearance through counsel and filed vakalat on 16.08.2002. Delivery was ordered on 212. 2002. That Tenant has entered appearance in E.P.No.293/2002 on 16.08.2002 and ordering delivery of possession on 212. 2002 are relevant to be noted. Period during which Tenant was contesting execution proceedings is the default period in the R.C.O.P.No.105/ 2003, which is under challenge. 10. Before adverting to the facts and evidence on wilful default, dispute regarding rent payable is to be noted. Landlords contended that rent is Rs.650/- p.m., whereas according to Tenant, rent is only Rs.625/- p.m. One of the landlords, PW-1 in his evidence has stated that their predecessor in title, viz., Lufia Beevi has informed them that monthly rent is Rs.650/- and contended that rent payable is Rs.650/- p.m. Tenant has produced previous rental receipt-Ex.R-2 for August, 1998 dated 01.09.1998, wherein rent is stated to be Rs.625/-. Tenant has paid rent for November, 2001 and December, 2001 @ Rs.625/- to one Abdul Halim, Power Agent of Owners under Ex.R- 3. RW-1 has also stated that the rent payable is only Rs.625/-. Based on documents and oral evidence, Rent Controller and Appellate Authority held that rent payable is only Rs.625/-. So far as that finding that monthly rent is Rs.625/-, cannot be said to be erroneous. 11. The learned Counsel for the landlords contended that even without filing an appeal under Sec. 23 of the Act or revision under Sec.25 of the Act, it is open to the parties to challenge the order on grounds found against him without filing an independent proceeding. 11. The learned Counsel for the landlords contended that even without filing an appeal under Sec. 23 of the Act or revision under Sec.25 of the Act, it is open to the parties to challenge the order on grounds found against him without filing an independent proceeding. By a catena of decisions, it is settled that in a case where an Order for eviction is sought on several grounds, and eviction is granted on one of such grounds, it would be open to the landlords to support the Order for eviction on the grounds found against him, in a appeal preferred against the Order of eviction by the Tenant, without the landlord himself taking up further proceedings or filing appeal against adverse finding. Holding that it is open to a Respondent in appeal to sustain an Order of eviction on the ground decided against him by the Rent Controller, in 1986(1) MLJ 16 [M/s.Shelat Brothers rep. By its Partner, Vs.Lodd Narendradas], Justice V. Ratnam has held :- "Again in A.G. Kannappa Nadar Vs.V.Krishnawamy Pillai, (1981) 1 MLJ (SN), 19, I had occasion to point out that a landlord can support an Order of eviction on a ground decided against him even in the course of appeal filed by the Tenant without preferring an independent appeal in that regard. M/s. Daba Industrial and Trading Company (Pvt.) Ltd. and another Vs.Dr.B.Chenakesavan, 1984 (1) MLJ 291 , points out that it has been consistently held by this Court that even though an eviction Petition was allowed on a finding on one of the several grounds having been proved and as against that an appeal had been filed by the Tenant, it is open to the landlord to support the Order for eviction on the grounds found against him in that appeal. It is therefore clear from the decisions referred to above that even in a case where an Order for eviction is sought cumulatively on several grounds and is granted on one of such grounds, it would be open to the landlord to support the Order for eviction on the grounds found against him in an appeal preferred against the Order of eviction by the Tenant without the landlord himself taking up further proceedings or filing an appeal against the adverse finding. If such is the position, in a case where the relief of eviction is asked for on several grounds and granted on one or more grounds and not on all, it would be all the more so, when the relief of eviction is asked for alternatively on two grounds and is granted on one and not on the other". 12. As per settled position, the landlords are entitled to challenge the finding of rent payable. On careful consideration of facts and evidence, it is to be held that authorities below were quite correct in finding that rent payable is only Rs.625/- and not Rs.650/-and the same cannot be interfered with. 13. Period of default is from November, 2001 to December 2002, which is inclusive of the period during which Tenant was contesting earlier execution proceedings in E.P.No.293/ 2003. Wilful default is alleged for the period when Tenant was hotly contesting earlier eviction proceedings. 14. R.C.O.P.No.105/2003 was filed on 13.01.2003; taken on file on 03.02.2003. PW-1 has admitted, that he has received the rents for November, December 2001. Hence the default should be from January 2002 to December 2002. Contention of Tenant is that he had sent the rent for the month of January 2002 to December 2002 on 03.02.2003 by way of Demand Draft [Ex.P-7] which was received by the landlords and encashed without any protest. Pointing out payment of rent in lumpsum just on the date of filing of Petition, learned Counsel for the Petitioner/Tenant contended that the landlords have proceeded with the Eviction Petition even after receipt of entire amount for the period of default, even before the hearing date. It was further submitted that when the landlords have received rent without any protest and encashed it on the date when Notice was ordered in the Petition for eviction, landlords had no cause of action to proceed with the matter. .15. Though above contention of Tenant appears to be contradictory, having regard to the facts and circumstances of the case, and conduct of the Tenant, it does not merit acceptance. Demand of arrears of rent for the months January 2002 to December 2002 is to be analyzed in the conduct of Tenant. As stated earlier, in R.C.O.P.No.1727/2001, already eviction was ordered on the ground of owners occupation and wilful default. In the execution proceedings, Tenant has entered appearance on 16.08.2002. Demand of arrears of rent for the months January 2002 to December 2002 is to be analyzed in the conduct of Tenant. As stated earlier, in R.C.O.P.No.1727/2001, already eviction was ordered on the ground of owners occupation and wilful default. In the execution proceedings, Tenant has entered appearance on 16.08.2002. While Tenant has hotly contested earlier execution proceedings, he has not chosen to pay rent for the months in 2002. It may be that landlords have received the rent for January 2002 to December 2002. Mere receiving of arrears of rent by landlords would not absolve the Tenant from the consequences of default. 16. In [Vasantha Leela Vs. N. Vadivelu Chettiar, 1998(3) CTC 467 ], it is the foremost duty of the Tenant to pay the rent in time. Especially when there is litigation between the parties, the Tenant ought to be vigilant. Default in such circumstances, has to be construed as wilful. 17. In [The Nilgiris Cooperative Marketing Society, rep. By its Secretary Vs. C.T. Uthandi, 1998(2) MLJ 745 = 1998(2) LW 216 , it was held that the Tenant has a legal obligation to tender rents to the landlord month after month. The Tenant pays up the entire arrears of rent on receipt of summons on date fixed for appearance of Tenant in Court. Such payment does not absolve him of disqualification suffered. 18. When already eviction was ordered on the ground of wilful default in R.C.O.P.No.1727/2001, one would expect the Tenant to pay rent regularly every month at least after he has entered appearance in E.P.No.293/2003. When the Tenant has failed to pay rent regularly during pendency of execution proceedings in the earlier execution Petition, there is no doubt that his conduct in not paying the rent will amount to wilful default. 19. The conduct of the Petitioner/Tenant in earlier execution proceeding is also relevant to be noted. Despite receipt of notice, Tenant has not entered appearance in the said RCOP and was filing applications after applications for the purpose of delaying the eviction proceedings. While disposing revisions [CRP Nos.1896 and 2366/2004], this Court has taken note of the deliberate inaction on the part of the Tenant in not taking diligent steps in pursuing the Eviction Petition and that Tenant was filing applications after applications mainly for the purpose of delaying eviction proceedings. While disposing revisions [CRP Nos.1896 and 2366/2004], this Court has taken note of the deliberate inaction on the part of the Tenant in not taking diligent steps in pursuing the Eviction Petition and that Tenant was filing applications after applications mainly for the purpose of delaying eviction proceedings. Viewed in that context, non payment of rent from January, 2002 to December, 2002 certainly amounts to wilful default. .20. Pointing out payment of arrears of rent, on 03.02.2003, i.e. just on the date of filing of Eviction Petition, learned Counsel for the Revision Petitioner/Tenant has contended that since the entire arrears was paid, there was no wilful default. The learned Counsel placed reliance upon 2000 (1) CTC 239 [C.Chandramohan Vs. Sengottaiyan (dead) by Lrs. And others]. In the said case, Eviction Petition was filed under Section 10(2)(i) of the Act. Tenant filed application seeking permission of Rent Controller to deposit rent on the plea that landlord refused to receive the rent. Tenant has deposited rent and landlord has withdrawn rent deposited even before filing Eviction Petition. In that context, Supreme Court has observed that landlord cannot raise the plea of wilful default after withdrawing rents deposited by Tenant and further held that failure to tender correct rent will not amount to wilful default in payment of rent. Facts are entirely different in the case in hand. Earlier, execution proceedings were pending. Even while Tenant was contesting that execution proceeding, Tenant has not chosen to pay the rent. It is not as if Tenant has approached the Court seeking permission of Rent Controller to deposit rent. .21. In 1996(1) LW 25 [Dekaya @ Dakaian Vs. Anjani], decision relied upon by the learned Counsel for the Tenant, Tenant paid the default rent on receipt of Notice from the landlord and has sent Demand Draft before filing the suit for eviction. In those facts and circumstances of the case, observing that there is no wilful default, Supreme Court has held :- ."This Court in the case of S. Sundaram Pillai (98 LW 49 = AIR 1985 S.C.582] has indicated that default per se cannot be construed as wilful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the Tenant, if the payment has been made before the institution of the suit, the cause of action for instituting of the suit, will vanish. In the instant case, immediately on receipt of demand of payment of rent, the Tenant initially sent a sum of Rs.375/-by money Order and thereafter a bank draft for Rs.1125/- covering the entire period of default from September, 1988 to November, 1988 was sent to the landlady. It, therefore, appears to us that there was no occasion to proceed on the footing that there was a wilful default for which an Order for eviction of the Tenant was to be passed. As the Tenant had already sent the Bank draft covering the entire default, there was also no occasion of the Rent Controller to direct deposit of arrears within the stipulated period. In our view, the Rent Controller, the first Appellate Court, and the High Court have failed to appreciate the incidence of tendering the entire amount under default before the institution of the suit". 22. Considering the facts and circumstances of the said case, Supreme Court has set aside the Order of eviction directing the Tenant to pay increased rent at Rs.550/-. Appeal was allowed in consonance with equity of justice. The above decisions cannot be applied to the case in hand. 23. In other decisions relied upon by the learned Counsel – 1999 (3) CTC 512 [S.M.Subbiah Vs.S.Nandappan & Others]; 1998 (2) LW 610 [Mohammed Arif and others Vs.Jafarulla]; in the factual matrix of those cases, Courts have held that there was no wilful default on the part of the Tenant. As noticed earlier, there was deliberate inaction on the part of the Tenant in non-payment of rent from January 2002 to December 2002. The Tenant has neither paid the rent nor resorted to follow the procedure laid down under the Act, which certainly amounts to wilful default. 24. The contention that Tenant is not guilty of wilful default since Tenant could not pay rent in time on account of ignorance, has no force. In a similar case in 2001(8)SCC 230 [Mariyam Begum Vs.Basheerunnisa Begum and others], the Supreme Court has held "When the proceeding was pending in the Court, she was represented by an advocate in all the three cases. She had the advantage of seeking advice from her Advocate appearing on her behalf, if she had any doubt. This shows that there has been indifference, rather supine indifference, to the obligation of the payment of rent to the landlady". .25. She had the advantage of seeking advice from her Advocate appearing on her behalf, if she had any doubt. This shows that there has been indifference, rather supine indifference, to the obligation of the payment of rent to the landlady". .25. The argument advanced, raising objection as to maintainability of Eviction Petition proceedings on the premise that landlords ought to have filed Petition under Sec.11(2) of the Act and separate Eviction Petition filed under Sec.10(2)(i) of the Act for subsequent period of default, cannot be sustained. There is no interdict for filing Eviction Petition for subsequent period. Dealing with Orissa House Rent Control Act, in 1995 Supp.(4) SCC 238 [Krushnalal Buxi Vs. Sudarshan Pani and others], Supreme Court has held default for two months, pending proceedings for eviction, amounts to wilful default. In the said case two applications have been filed for two succeeding periods. In the first case, default was for five months. It was concurrently found that there was no wilful default in that behalf. In the second case, there was default for two months. In that case, Supreme Court has held as, "since the landlord had already filed an application for eviction and while the first application was pending and the Tenant had committed further default, in these circumstances, the question of drawing an inference of waiver and an intention of agreeing to receive rent contrary to the contract at irregular intervals does not arise". 26. Tenant cannot raise objection as to the filing of successive applications even while earlier execution Petition to execute the Order of eviction proceedings was pending. It may also be noted that in the earlier eviction proceedings, since Tenant has remained exparte, there was no objection for the landlord to file Petition under Section 11(4) of the Act. 27. In proper appreciation of facts and evidence and having regard to the conduct of the Tenant, both Courts have concurrently recorded finding of wilful default and the same cannot be interfered with. Exercising revisional jurisdiction under Section 25 of the Act, High Court will not interfere in the concurrent findings, unless those findings are perverse and unreasonable. There is nothing to show that the reasonings are perverse or unsustainable. This revision is devoid of merits and is bound to fail. 128. Exercising revisional jurisdiction under Section 25 of the Act, High Court will not interfere in the concurrent findings, unless those findings are perverse and unreasonable. There is nothing to show that the reasonings are perverse or unsustainable. This revision is devoid of merits and is bound to fail. 128. In the result, the Order dated 17.08.2006 made in R.C.A. No.1508/2004 on the file of VII Small Causes Court, Chennai is confirmed and this revision is dismissed. No costs. M.P.No.1/2006 is also dismissed. 129. After the Order was passed, learned Counsel for the Revision Petitioner requested time for vacating the premises. In consideration of the submissions in earlier CRP, Petitioner was granted time till the end of April, 2007. In this Revision Petition also, time is granted till the end of April, 2007.