Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4482 (MAD)

Victor Devapalan v. S. Joesph Sagayaraj

2011-11-10

R.SUDHAKAR

body2011
Judgment :- 1. This civil revision petition is filed to set aside the Judgment and Degree dated 09.12.2009 passed in RCA.No.417 of 2007 on the file of the VII Small Causes Judge, Chennai(Rent Control Appellate Authority) confirming the fair and decreetal order dated 02.03.2007 passed in RCOP.No.827 of 2006 on the file of the X Small Causes Judge, Chennai(Rent Controller) thereby ordering eviction of the petitioner from the petitioner premises. 2. The revision petitioner/tenant was inducted as a tenant in the commercial shop portion of the demised premises on monthly rent of Rs.1,000/-with an advance of Rs.10,000/- with effect from 01.01.2003. It is the case of the respondent/landlord that from February,2003, the tenant defaulted in payment of rent and requested the landlord to adjust the rent in the advance amount. Thereafter, in July 2005, the revision petitioner/tenant filed a suit in O.S.No.4680 of 2005 against the grand father of the respondent/landlord for the prayer not to evict the revision petitioner from the premises without due process of law. The said suit came to be dismissed for default on 05.02.2006 and has not been restored thereafter. 3. Heard Mr.N.R.Anantha Rama Krishnan the learned counsel appearing on behalf of the petitioner and Mr.V.Srikanth, the learned counsel appearing on behalf of the respondent. 4. The father of the present landlord died in the year 2002 long before the above suit was filed. Though this fact is besides the issue in the present case, it is highligted only to show the conduct of the tenant. On 10.02.2006, the cause of action for the present litigation arose when the Landlord issued the notice alleging wilful default. On 24.02.2006, the revision petitioner/tenant replied denying the default and claimed to have paid rent till 07.06.2005. In view of the specific reply notice denying the default in payment of rent, there was no alternative for the respondent/landlord except to proceed against the tenant. Therefore, on 10.04.2006, the respondent/landlord filed R.C.O.P.No.827 of 2006 under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, on a plea that the revision petitioner/tenant defaulted in payment of rent for a period of 29 months from 01.11.2003 to 03.03.2006. On 02.03.2007, the Rent Control proceedings in RCOP.No.827 of 2006 was allowed and eviction ordered. Aggrieved thereby, an appeal was filed by the revision petitioner/tenant on 13.07.2007 in RCA.No.417 of 2007. On 02.03.2007, the Rent Control proceedings in RCOP.No.827 of 2006 was allowed and eviction ordered. Aggrieved thereby, an appeal was filed by the revision petitioner/tenant on 13.07.2007 in RCA.No.417 of 2007. In the appeal in M.P.No.780 of 2007, an order was passed on 29.08.2008 directing the tenant to pay arrears of the defaulted rent. Thereafter, on 23.06.2009, the revision petitioner/tenant filed CRP(PD) No.3684 of 2008 before this Court challenging the order passed in M.P.No.780 of 2007 in RCA.No.417 of 2007. The said Civil Revision Petition came to be disposed on 23.06.2009 directing the revision petitioner/ tenant to pay the arrears of defaulted rent and further directed the appellate authority to dispose of the appeal in RCA.No.417 of 2007. The appellate authority heard the matter and the order of eviction was confirmed on merits on 09.12.2009. Challenging the said order of Appellate Authority, the present civil revision petition has been filed. 5. Interim stay was ordered on 23.03.2010. The revision petition has not been admitted so far. By consent of both the counsel, the revision petition is taken up for final disposal. 6. The only one plea taken by the learned counsel appearing for the revision petitioner/tenant is that there is no wilful default and such plea is based on an interpretation of Section 10(2)(i) of the Act and the explanation to proviso, which reads as follows,:- “10.Eviction of tenants(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or sections 14 to 16. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or Provided that in any case falling under clause(i) if the controller is satisfied that the tenants default to pay or tender rent was not wilful, he may, notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected. Explanation I-For the purpose of this sub section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent...." 7. According to the petitioner in terms of explanation to proviso to Section 10(2)(i) of the Act, the rent control proceedings initiated even prior to expiry of two months period from date of notice will not attract the terms wilful default so as to enable the respondent/landlord to invoke the provision of Section 10(2)(i) of the Act and therefore, the Courts below viz., the appellate authority as well as the Rent Controller failed to consider the plea of the petitioner/tenant that willful default has not been established. Therefore, the petition should have been dismissed. In support of his contention, the learned counsel appearing for the petitioner relied upon the decision of the Honble Supreme Court reported in (2000) 3 Supreme Court Cases 282 in the case of CHORDIA AUTOMOBILES Versus S.MOOSA AND OTHERS; and in P.M.PUNNOOSE Versus K.M.MUNNERUDDING AND OTHERS (2003) 10 Supreme Court Cases 610). 8. Therefore, the petition should have been dismissed. In support of his contention, the learned counsel appearing for the petitioner relied upon the decision of the Honble Supreme Court reported in (2000) 3 Supreme Court Cases 282 in the case of CHORDIA AUTOMOBILES Versus S.MOOSA AND OTHERS; and in P.M.PUNNOOSE Versus K.M.MUNNERUDDING AND OTHERS (2003) 10 Supreme Court Cases 610). 8. It is the contention of the learned counsel Mr.V.Srikandh appearing for the respondent/landlord that the facts of the decision in the Apex Court relied upon by the revision petitioner does not applicable to the facts of the present case. 9. In respect of the notice dated 10.02.2006 issued by the Landlord , the revision petitioner has sent a reply dated 24.02.2006 refuting the claim of default in payment of rent. Therefore, the explanation to proviso of Section 10(2)(i) of the Act is not attracted. The revision petitioner/tenant denied the default in his immediately reply to the notice by the landlord. In view of the above, the landlord filed petition under Section 10(2)(i) of the Act pleading wilful default. 10. The plea taken by the learned counsel appearing for the respondent/landlord is justified. From the reading of the Apex Court decision relied on by the revision petitioner, it is clear that in the case of CHORDIA AUTOMOBILES Versus S.MOOSA AND OTHERS, notice was issued on 09.08.1989 on the ground of wilful default and that there was no reply notice sent by the tenant, however, before the expiry of the period of 60 days from the date of notice, the landlord filed eviction petition on 27.09.1989. In terms of the explanation to proviso to Section 10 on the date when the tenant is said to have defaulted, the said 60 days period did not expire. The Apex Court, therefore held that there was no wilful default. The relevant portion of the judgment is extracted hereunder:- "......The statute 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. In the present case, notice was sent on 09.08.1989, thus the said two months would have expired only on 09.10.1989. In the present case, notice was sent on 09.08.1989, thus the said two months would have expired only on 09.10.1989. In other words, in case the tenant could have paid the said amount within this period, it would not be a case of wilful default. We find in the present case after sending the said notice, the landlord did not wait for the expiry of the said period and before that filed the eviction petition RCOP.No.2963 of 1989 on 20.09.1989 alleging the wilful default and further if the suit itself was filed before the said period there could be no question of sending any reply to the said notice." 11. In the present case, the revision petitioner/tenant immediately after receipt of the notice alleging default replied denying wilful default. Therefore, the question of granting on waiting for the 60 days to file the petition does not arise in the fact of the present case. It is only when no reply is given to the notice alleging wilful default, the explanation to proviso to section 10(2)(i) will get attract. The fact of the present case differs from the facts in the Apex Courts decision. Thus the revision petitioner is not entitled to raise the plea that the Rent Control proceedings initiated before expiry of 60 days is bad. 12. Further, para 13 of the judgment reported in (2003)10 Supreme Court Cases 610 (cited supra) equally will not apply to the facts of the present case, as the notice in the present case has been issued by the respondent/landlord giving 15 days time to give reply by the tenant, which notice itself is not a pre-condition for initiating the proceedings under Section 10(2)(i) of the Act. In this case, the respondent/landlord has not issued any notice to the tenant in terms of the explanation to proviso to Section 10(2)(i) of the Act so as to take the plea that 60 days time has not expired. In view of the above stated factual aspect, the decision of the Supreme Court relied upon by the learned counsel appearing for the revision petitioner/tenant is not applicable to the facts of the present case. 13. On merits, the Appellate Authority as well as the Rent Controller have clearly come to the conclusion that there has been wilful default in payment of rent based on evidence on record. 13. On merits, the Appellate Authority as well as the Rent Controller have clearly come to the conclusion that there has been wilful default in payment of rent based on evidence on record. This Court is unable to find any infirmity or illegality in the order passed by the Courts below. The revision petitioner has not made out a case for interfering with well considered and reasoned order passed by the appellate authority. No other plea was argued except the above. 14. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P. is closed.