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2013 DIGILAW 40 (MAD)

M. Rajarathinam v. J. Babu Shanthi

2013-01-03

G.RAJASURIA

body2013
JUDGMENT 1. Compendiously and concisely, the germane facts which are absolutely necessary for the disposal of this Civil Revision Petition would run thus: The parties are referred to hereunder, as follows; the revision petitioner herein, M.Rajarathinam is referred to as the tenant and the respondent herein, J.Babu Shanthi is referred to as the landlady. 2. The landlady filed eviction petition in R.C.O.P.No.31 of 2003 as against the tenant invoking Sections 10(2)(1)(ii)b, 10(3)(a)(i) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the grounds of wilful default in paying the rent by the tenant, for owner's occupation and for demolition and reconstruction. The tenant resisted the application. 3. Up went the enquiry, during which on the landlady's side, she examined herself as P.W.1 and one Jayasekar was examined as P.W.2 and documents Exs.P1 to P17 were marked. On the side of the tenant, he examined himself as R.W.1 and documents Exs.R1 to R7 were marked. Court documents Exs.C1 to C4 were also marked. 4. Ultimately, the Lower Court rejected the ground of owner's occupation, but allowed the R.C.O.P., on the grounds of wilful default and for demolition and reconstruction. Being aggrieved over the same, the R.C.A.No.3 of 2008 was filed for nothing but to be dismissed. Challenging and impugning the order passed in the R.C.A., the present Civil Revision Petition is focussed on various grounds. 5. The learned counsel for the tenant, placing reliance on the grounds of revision, would put forth and set forth his arguments, which could succinctly and precisely be set out thus: The landlady refused to receive the rent payable for the month of June 2002; whereupon the tenant approached the Rent Controller in R.C.O.P.No.617 of 2002 invoking Section 8 of the Rent Control Act for depositing the rent. While so, the landlady filed the R.C.O.P.No.31 of 2003 for eviction. The R.C.O.P.No.617 of 2002 was disposed of by the Rent Controller in view of the undertaking given by the landlady's Advocate that the rent would be received by the landlady. Thereafter, a sum of Rs.3,250/-by way of a demand draft dated 11.08.2003 was paid by the tenant to the landlady. But the Courts below failed to take note of the said fact, but wrongly held as though there was wilful default in paying the rent by the tenant. Thereafter, a sum of Rs.3,250/-by way of a demand draft dated 11.08.2003 was paid by the tenant to the landlady. But the Courts below failed to take note of the said fact, but wrongly held as though there was wilful default in paying the rent by the tenant. The plea of demolition and reconstruction is nothing but a nancy story for the purpose of evicting the tenant. The very fact that the building is still in existence ever since 2003, would by itself exemplify and prove that the landlady was not truthful in stating that the building was in a dilapidated condition. He never had any intention to commit default in paying the rents. Without adhering to the law and noting down the salient features, the Courts below simply ordered eviction warranting interference in revision. 6. Per contra, the learned counsel for the landlady in a bid to slap down and torpedo the arguments as put forth and set forth on the side of the tenant, would advance his arguments which could pithily and precisely be set out thus: The very fact that even as per the submission of the tenant, the arrears of rent were paid only during the month of August 2008 representing huge arrears would constitute wilful default in paying rent. As on the date of filing of the R.C.O.P.No.31 of 2003, there were five months arrears of rent payable by the tenant to the landlady. Without adhering to the procedures contemplated under Section 8 of the Act, the said R.C.O.P.No.617 of 2002 was filed by the tenant invoking Section 8 of the Act and it was dismissed and thereafter alone the tenant did choose to tender the arrears to the landlady. Absolutely there is nothing to indicate as to why the landlady did not pay the rent on receipt of the notice in R.C.O.P.No.31 of 2003 filed by the landlady. Both the Courts below properly held that there was wilful default on the part of the tenant in paying the rents. 7. The learned counsel for the landlady also would advance his arguments by highlighting and spotlighting that the building need not be in a dilapidated condition before the landlady seeking the assistance of the Court for evicting the tenant on the ground of demolition and reconstruction. 7. The learned counsel for the landlady also would advance his arguments by highlighting and spotlighting that the building need not be in a dilapidated condition before the landlady seeking the assistance of the Court for evicting the tenant on the ground of demolition and reconstruction. Here in this case, ample evidence has been adduced to portray and establish to the effect that the building is sufficiently old and that has to be demolished. Both the Courts correctly ordered eviction on the ground of demolition and reconstruction also. 8. The points for consideration are: 1) Whether both the Courts below were justified in holding that there was wilful default in paying the rents on the part of the tenant in favour of the landlady and whether the payment of the lumpsum amount during the month of August 2003 itself would constitute wilful default? 2) Whether, without any basis, the landlady sought for demolition and reconstruction of the building concerned? 9. With regard to the first point, at the outset, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: 1) Vijayakumar v. Ravindran and others reported in 1997-3-CTC-476, which is to the effect that the tenant therein committed wilful default not only prior to eviction petition but also during pendency of eviction petition till appeal was preferred. 2) E. Palanisamy v. Palanisamy (D) by LRs and others reported in (2003) 1 Supreme Court Cases 123. Certain excerpts from it, would run thus: "4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act. 5. Mr. Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal [ (1996) 1 SCC 243 ] and M. Bhaskar v. J. Venkatarama Naidu [ (1996) 6 SCC 228 ]. 6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal [ (1996) 1 SCC 243 ] held: (SCC p. 249, para 8) “8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar [ AIR 1955 SC 661 : (1955) 2 SCR 603 ] (SCR at p. 646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs 3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.” 7. Again in M. Bhaskar v. Venkatarama Naidu [ (1996) 6 SCC 228 ] with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant. 8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment." 9. A mere running of the eye over the above decisions would exemplify and demonstrate that the tenant is enjoined to strictly adhere to the procedure contemplated in Section 8 of the Act and he cannot simply rearrange the methods envisaged therein. There is no iota or shred of evidence to point up and show up that the tenant was as keen as mustard in adhering to the procedures as contemplated under Section 8 of the Act in calling upon the landlady to specify the bank account in which the tenant could deposit the rents. There is also nothing to indicate that after exhausting the first method, he sent the arrears of rent by money order. Even after filing R.C.O.P.No.617 of 2002 invoking Section 8 of the Act, there is nothing to exemplify and display that he got permission from the Court and deposited the arrears of rent in the Court. Moreover, even as per Section 11 of the Act, he has not chosen to pay or deposit the rents after receipt of notice in R.C.O.P.No.31 of 2003 filed by the landlady. A mere cursory perusal of the provisions of the Rent Control Act would denote and connote that the tenant cannot enjoy the benefits under the Act, by ignoring to pay the rent. In Palanisamy's case cited supra, the Hon'ble Apex Court highlighted that there is no question of applying equity in favour of the tenant who committed default in paying rents. 10. In Palanisamy's case cited supra, the Hon'ble Apex Court highlighted that there is no question of applying equity in favour of the tenant who committed default in paying rents. 10. As such, from the factual matrix, what transpires and gleans is that the rent was not paid from June 2002 onwards and the accrued arrears were only paid during the month of August 2008, for which various explanations furnished by the tenant but they failed to hold water and pass muster. Both the Courts below correctly applied the law and held that there was wilful default in payment of rent on the part of the tenant. Not to put too fine a point on it, I would also like to highlight the fact that the tenant should not only be diligent in paying the rent during the pre-litigative process but also pending litigation. In the wake of such settled position, I am of the view that no interference is called for with the findings of both the fora below. Accordingly the first point is answered in favour the landlady and against the tenant. 11. With regard to the second point, I would like to recollect and recall the following decisions of the Honourable Apex Court: (i) HarringtonHouse Schoolv. S.M.Ispahani and anotherreported in (2002) 3 M.L.J. 130 (S.C). (ii) S. Venugopal v. A.Karruppusami and another reported in 2006(2) CTC 615. (iii)M/s. Bata India Limited rep. by its Asst. Manager v. M/s. Express Construction Company rep. by its Managing Partner in C.R.P.(NPD)No.1393 of 2010 decided on 06.08.2012. 12. A poring over and perusal of the above precedents would demonstrate and convey that the building concerned need not necessarily be in a dilapidated condition or down at heals. However, in this case, there is nothing to portray or project that the building is in a new one so as to doubt the bona fides of the landlady in seeking eviction on the ground of demolition and reconstruction. The Engineer's Report, Ex.C3, relied on by the Courts below would show that it is sufficiently an old building. A fortiori, the bona fides of the landlady cannot be doubted. Regarding the financial wherewithal of the landlady for reconstruction is concerned, the Apex Court would observe that nowadays for raising constructions, the banks are ready to render financial assistance. The Engineer's Report, Ex.C3, relied on by the Courts below would show that it is sufficiently an old building. A fortiori, the bona fides of the landlady cannot be doubted. Regarding the financial wherewithal of the landlady for reconstruction is concerned, the Apex Court would observe that nowadays for raising constructions, the banks are ready to render financial assistance. In such a case, the landlord/landlady need not prove meticulously and sedulously his/ her financial capacity to raise such new building. Axiomatic as it is, during execution proceedings before obtaining the order of delivery, the landlady could produce the current approved plan for reconstruction. In the wake of the precedents cited supra, this point is also answered in favour of the landlady and against the tenant. Accordingly, I am of the view that the orders passed by both the Courts below in ordering eviction warrant interference and I see no perversity or illegality in those orders. Accordingly, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs. 13. On hearing the pronouncement of the order, the learned counsel for the revision petitioner / tenant would make an extempore submission that six months' time might be granted for the tenant to vacate and hand over peaceful possession of the premises concerned in favour of the landlady. Whereupon, the learned counsel for the landlady would raise objection for such granting of time. By way of striking a balance between the two, five months' time is granted for the tenant to vacate and hand over the peaceful possession of the demised premises to the landlady, subject to the tenant giving an undertaking that he would regularly pay the rents and he would also hand over the possession of the premises concerned to the landlady peacefully on expiry of the said period of five months. An affidavit shall be filed in this Court by the tenant within a period of fifteen days to that effect.