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Madras High Court · body

2013 DIGILAW 4020 (MAD)

N. L. Narasimhan v. T. I. Viswanathan

2013-11-27

B.RAJENDRAN

body2013
ORDER 1. These four revision petitions have been filed by the landlord against the orders passed by the Appellate Authority. Both the petitioner and the respondents in these revision petitions are one and the same, the issue involved for adjudication is also similar, therefore common arguments have been advanced and these civil revision petitions are disposed of by this common order. 2. For the sake of convenience, the revision petitioner shall hereinafter be referred to as 'landlord' and the respondents shall be referred as 'tenants'. 3. The landlord has filed RCOP No. 2321 of 1997 before the learned Rent Controller under Section 10 (2) (i) and 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter be referred to as 'The Act' for evicting the tenant on the ground of wilful default in payment of rent. According to the landlord, the tenants were inducted in the petition mentioned property for residential use for a monthly rent of Rs.3,000/- per month, but the tenants have not paid the rent from 01.04.1993 to 31.07.1997 for 52 months. It is further stated that the landlord is living along with his two sons, daughters-in-law and three grand children in the same building in a portion, therefore, he also sought for eviction of the tenants on the ground of owners own use and occupation. 4. During the pendency of RCOP No. 2321 of 1997, the landlord has filed RCOP No. 1945 of 1999 for fixation of fair rent for the petition mentioned premises at Rs.1,30,711/- per month. Thereafter, the landlord has filed RCOP No. 1946 of 1999 for eviction of the tenants on the ground of wilful default in payment of rent for the subsequent period from 01.08.1997 till 11.07.1999 as well as for committing act of waste in the Petition mentioned premises. 5. The tenants have resisted the Rent Control Original Petitions by filing a counter affidavit contending that they have entered into an agreement of sale with the landlord on 04.07.1992 for purchasing the petition mentioned property. As per the terms of the agreement, they have paid Rs.7,00,000/- out of Rs.12,00,000/- being the sale consideration and therefore, the relationship of landlord-tenant does not exist between them. It was further contended that the tenants have also paid Rs.30,000/- as rental advance at the time when they were inducted as tenant. As per the terms of the agreement, they have paid Rs.7,00,000/- out of Rs.12,00,000/- being the sale consideration and therefore, the relationship of landlord-tenant does not exist between them. It was further contended that the tenants have also paid Rs.30,000/- as rental advance at the time when they were inducted as tenant. Therefore, the tenants would contend that there is no question of any default, much less wilful default in payment of rent. 6. The learned Rent Controller, on perusal of the oral and documentary evidence dismissed RCOP No. 2321 of 1997 filed by the landlord on 05.04.1999 for eviction of the tenant on the ground of wilful default in payment of rent by holding that the landlord has failed to prove that the tenants have committed wilful default in payment of rent. 7. As far as RCOP No. 1946 of 1999 for eviction of the tenants on the grounds of wilful default in payment of rent for the subsequent period from 01.08.1997 till 11.07.1999 as well as for committing act of waste in the Petition mentioned premises, the learned Rent Controller allowed the Petition filed by the landlord on 30.10.2001 only on the ground of wilful default in payment of rent but rejected the claim on the ground of act of waste and consequently directed the tenants to vacate the petition mentioned premises within two months. As against RCOP No. 2321 of 1997, the landlord has filed R.C.A. No. 566 of 1999. As against the order passed in RCOP No. 1946 of 1999, the tenants have filed R.C.A. No. 59 of 2002. The appellate authority, by a common order dated 23.07.2004, dismissed R.C.A. No. 566 of 1999 filed by the landlord and the R.C.A. No. 59 of 2002 filed by the tenants was allowed. As against the same, the landlord has filed R.C.A. Nos. 2724 and 2722 of 2004 respectively. 8. As far as RCOP No. 1945 of 1999 filed by the landlord for fixation of fair rent is concerned, the learned Rent Controller after considering the oral and documentary evidence, allowed the Petition filed by the landlord by fixing the fair rent at Rs.45,068/- per month. As against the same, the landlord has filed R.C.A. No. 58 of 2002 before the Appellate Authority for enhancing the fair rent. The tenants have also filed R.C.A. No. 75 of 2002 for reduction of the fair rent. As against the same, the landlord has filed R.C.A. No. 58 of 2002 before the Appellate Authority for enhancing the fair rent. The tenants have also filed R.C.A. No. 75 of 2002 for reduction of the fair rent. The Appellate Authority, on consideration of the rival submission as also the oral and documentary evidence, dismissed R.C.A. No. 58 of 2002 filed by the landlord and allowed the R.C.A. No. 75 of 2002 filed by the tenants, by a common order dated 23.07.2004 and thereby fixed the fair rent at Rs.21,146/- per month. As against the same C.R.P. Nos. 2723 and 2459 of 2004 respectively have been filed by the landlord. The tenant has not preferred any appeal as against the common order dated 23.07.2004 passed by the Appellate Authority in RCA Nos. 58 and 75 of 2002. 9. The learned senior counsel appearing for the landlord/revision petitioners would contend that the tenants are squatting on the property without even paying rent. Such an obligation to pay rent is statutory on the part of the tenants and non-payment of the same will entitle the landlord to seek for their eviction. As per the agreement of sale dated 04.07.1992, the tenants have to perform their part of the contract on or before 03.01.1993. Admittedly, the agreement of sale has not been acted upon due to the non-performance of contract by the tenants. Therefore, the agreement dated 04.07.1992 is no longer in force and the tenants cannot rely upon the same. Further, on the basis of the agreement of sale dated 04.07.1992, a sale deed was not executed in favour of the tenants nor the tenants have filed a suit for specific performance to enforce the stipulations contained in the agreement of sale. The agreement of sale dated 04.07.1992 has no life and that is the reason why even at the time of filing the first Rent Control Original Petition, being RCOP No. 2321 of 1997, the landlord claimed rent after adjusting the rent paid already and the rent was claimed only from 01.04.1993. Even in RCOP No. 2321 of 1997, it was clearly stated that the tenants did not pay rent for the period from 01.04.1993 to 31.07.1997 for about 52 months. Even in RCOP No. 2321 of 1997, it was clearly stated that the tenants did not pay rent for the period from 01.04.1993 to 31.07.1997 for about 52 months. Thereafter, the landlord has filed the second Rent Control Original Petition, being RCOP No. 1946 of 1999, for eviction of the tenants on the ground of wilful default in payment of rent for the subsequent period from 01.08.1997 till 11.07.1999 as well as for committing act of waste in the Petition mentioned premises. In the second Original Petition, it was categorically brought out that the tenants did not pay rent even during the pendency of the RCOP No. 2321 of 1997. The learned Senior counsel for the revision petitioners also would contend that in the Rent Control Original Petition reference was also made to the agreement of sale dated 04.07.1992 and the breach of the terms of the agreement by the tenants to perform their part of the contract within the time stipulated in the agreement. 10. `The learned senior counsel for the landlord/revision petitioners brought to the notice of this Court that the tenants have paid rent of Rs.3,000/- on 31.07.1992; Rs.6,000/- on 02.09.2002; Rs.3,000/- on 13.10.1992 and Rs.18,000/- on 30.04.1993. All these payments have been made by the tenants by means of cheque. When the payment towards rent have been made by the tenants subsequent to the execution of the sale agreement dated 04.07.1992, it would only indicate that the agreement of sale did not put an end to the relationship of landlord and tenant, hence, the tenants are liable to pay the rent to the landlord. Therefore, it cannot be said that the Rent Control Original Petition filed by the landlord is not maintainable. 11. As regards the fair rent fixed by the Appellate Authority is concerned, the learned senior counsel for the landlord/petitioners would contend that it was not in consonance with the locational advantage where the petition mentioned property is situate. The learned Rent Controller has fixed only Rs.45,068/- per month, which itself was meager, however, the Appellate Authority reduced it to Rs.21,146/- per month. The learned Rent Controller has fixed only Rs.45,068/- per month, which itself was meager, however, the Appellate Authority reduced it to Rs.21,146/- per month. As against the fixation of fair rent, only the landlord has preferred a Civil Revision Petition and the tenant has not filed any further appeal thereby the fair rent fixed by the Appellate Authority has become final as far as the tenants are concerned and the tenants have indirectly agreed and accepted the fair rent fixed by the Appellate Authority at Rs.21,146/-, which they are liable to pay towards rent. Consequently, the tenant is liable to pay Rs.21,146/- as per the order passed by the Appellate Authority and if that is taken into consideration, the tenants are in arrears of Rs.38,16,528/- as on 31.10.2013. Even if the sum of Rs.7,00,000/- paid by the tenants towards advance sale consideration as well as the sum of Rs.30,000/- paid as rental advance are given credit to their liability, still, the tenants are liable to pay a huge sum as arrears. Therefore, the learned senior counsel for the petitioners would contend that the tenants are guilty of non-payment of rent and such non-payment is wilful, wanton and deliberate. Therefore, on the ground of wilful default, the tenants are liable to be evicted. 12. In support of his contentions, the learned senior counsel for the revision petitioners relied on the decision of this Court reported in (Jessic Thavamani vs. Liakath Basha) 1996 1 CTC 348 to contend that the agreement of sale entered into between the landlord and tenants will not in any way relieve the tenant from their obligation to pay the rent unless there is a specific and express recital in the agreement of sale to the effect that the tenant need not pay rent to the landlord. In the absence of such recitals, the tenants are duty bound to pay the rent and the agreement of sale will not extinguish the relationship of landlord and tenant. 13. The learned senior counsel appearing for the revision petitioners also relied on the decision of this Court reported in (S. Gurumurthy vs. N. Raman) 2007 (2) CTC 326 to contend that if there is no specific or express recital in the agreement of sale entered into between the landlord and tenants, the liability of the tenants to pay rent will continue and it will not come to an end. In such event, Section 7 of the Act will not come to the rescue of the tenants and the advance paid towards sale consideration cannot be adjusted towards future rents payable by the tenant. Consequently, the tenants have to be construed as having committed wilful default in payment of rent and on that ground they are liable to be evicted. 14. The learned senior counsel further relied on an unreported decision of this Court rendered in CRP (NPD) No. 2293 of 2009 dated 04.12.2009 wherein this Court held that unless there is specifications in the agreement of sale that the tenants need not pay the statutory rent, the severance of the character of the tenants into that of an agreement holder does not arise. The learned senior counsel also brought to the notice of this Court that in this unreported decision, this Court referred to the decision reported in (John V. John vs. Goolamally Estates, Madras) (1989) Tamil Nadu Law Journal 311, which was relied on by the counsel for the respondents, and held in para No.16 that the view expressed therein has not been accepted by this Court in the subsequent decisions. The learned senior counsel for the petitioners also brought to the notice of this Court that in the unreported decision, this Court relied on the decision of the Honourable Supreme Court to hold that when the agreement of sale stood cancelled, the relationship of buyer and seller will not exist. In the present case, the tenants have paid rent by cheques subsequent to the expiry of the agreement of sale and thereafter stopped paying the rent and therefore, definitely, the tenants are guilty of wilful default in payment of rent. 15. The learned counsel appearing for the tenants/respondents, on the other hand, would contend that at the time when the tenants were inducted, they have paid a sum of Rs.30,000/- as rental advance and it is in the hands of the landlord. Thereafter, as per the agreement of sale, the tenants have paid a sum of Rs.7,00,000/- as advance for sale consideration. Thus, a total sum of Rs.7,30,000/- is with the landlord. As the tenants were under the impression that the sum of Rs.7,30,000/- is with the landlord, they need not pay the rent. Thereafter, as per the agreement of sale, the tenants have paid a sum of Rs.7,00,000/- as advance for sale consideration. Thus, a total sum of Rs.7,30,000/- is with the landlord. As the tenants were under the impression that the sum of Rs.7,30,000/- is with the landlord, they need not pay the rent. Inspite of the sum of Rs.7,30,000/- having been retained by the landlord, the Rent Control Original Petitions have been filed by the landlord alleging wilful default in payment of rent. In support of his contention, the learned counsel for the tenants/respondents relied on the decision of this Court reported in (John V. John vs. Goolamally Estates, Madras) (1989) Tamil Nadu Law Journal 311 and the decision of the Honourable Apex Court reported in (R. Karunanidhi and another vs. Mrs. Beatrice Xavier) 2000-2-Law Weekly 805 to contend that when there is an agreement of sale entered into between the landlord and tenant, it brings to an end the relationship of landlord and tenant totally. 16. The learned counsel for the respondents would further contend that even assuming without admitting that the tenants have committed wilful default in payment of rent, the landlord is in possession of Rs.7,30,000/- paid by the tenants and that would cover the arrears of rent payable by them up to date. Even as per the agreement of sale dated 04.07.1992, if at all the agreement of sale is cancelled, the landlord can withhold only Rs.50,000/- and still there is a balance of Rs.6,50,000/- paid by the tenants towards advance sale consideration apart from Rs.30,000/- paid as rental advance. The learned counsel for the respondents would further contend that under Section 7 (2) of the Act, the landlord cannot withhold more than one month rent. Therefore, at the time when the Rent Control Original Petitions were filed, the landlord was in possession of huge amount and therefore, it cannot be construed that the tenants have committed wilful default in payment of rent. Therefore, it was specifically argued that the Rent Control Original Petitions are not maintainable. Hence, the Courts originally erroneously held that the non-payment of rent by the tenants is wilful and wanton. But the appellate Court held that there is no wilful default in payment of rent. Therefore, it was specifically argued that the Rent Control Original Petitions are not maintainable. Hence, the Courts originally erroneously held that the non-payment of rent by the tenants is wilful and wanton. But the appellate Court held that there is no wilful default in payment of rent. The courts below has taken note of the fact that the character of the tenants stood converted into one of agreement holder and therefore, the learned counsel for the tenants/respondents would only contend that the courts below are not right in holding that the tenants are guilty of non-payment of rent. 17. I heard the counsel for both sides and perused the materials placed on record. An interesting question arise in these Civil Revision Petitions as to whether the agreement of sale dated 04.07.1992 entered into between the landlord and tenants would in any way entitle the tenants to remain in possession of the property without paying the statutory rent. 18. The admitted facts in this case are that the tenants have paid a sum of Rs.30,000/- as advance at the time when they were inducted as tenants in the petition mentioned premises. The rent fixed per month was Rs.3,000/-. There was an agreement of sale entered into between the landlord and tenants on 04.07.1992, by which, the landlord agreed to sell the petition mentioned premises to the tenants. The total sale consideration fixed was Rs.12,00,000/- out of which the tenants have paid Rs.7,00,000/- as advance on various dates. It is also an admitted fact that the agreement of sale was not acted upon. The tenants have not performed their part of the contract pursuant to the agreement of sale dated 04.07.1992 by getting the sale deed executed in their favour before the expiry of the time stipulated in the agreement of sale namely 03.01.1993. It is also an admitted fact that the tenants have not filed a suit for specific performance for enforcing their right as an agreement holders. It is also agreed by both sides that in the agreement of sale entered into between the landlord and tenant, there is no recital to the effect that the tenants need not pay the future rent to the landlord. 19. Before the learned Rent Controller, in RCOP No. 2321 of 1997, on behalf of the landlord, the letter dated 21.08.1993 written by the landlord was marked as Ex.P4. 19. Before the learned Rent Controller, in RCOP No. 2321 of 1997, on behalf of the landlord, the letter dated 21.08.1993 written by the landlord was marked as Ex.P4. In and by the letter dated 21.08.1993, the landlord had categorically stated that the agreement of sale dated 04.07.1993 stood cancelled. Inspite of such specific indication in Ex.P4, the learned Rent Controller dismissed RCOP No. 2321 of 1997 by holding that the landlord is in possession of Rs. 7,00,000/- received as advance sale consideration and the same has to be treated as rental advance. The learned Rent Controller further held in RCOP No. 2321 of 1997 that since the amount claimed as rental arrears is only Rs.1,56,000/- the same can be adjusted out of the sum of Rs.7 lakhs paid by the tenants. Based on such a finding, the learned Rent Controller held in RCOP No. 2321 of 1997 that the tenants cannot be said to have committed default in payment of rent. The learned Rent Controller did not treat the sum of Rs.7,00,000/- paid by the tenants as advance sale consideration but as rental advance without any evidence. Such a conclusion arrived at by the learned Rent Controller in RCOP No. 2321 of 1997 cannot be sustained. 20. In this case, on a crucial aspect, these revision petitions have to be decided. In the agreement of sale dated 04.07.1992, period for performance of the contract was stipulated and it came to an end on 03.01.1993. As per the agreement of sale, the tenants have paid Rs.7,00,000/- out of Rs.12,00,000/- fixed as sale consideration. But subsequently, the tenants have not taken any steps to get the sale deed executed in their favour. Therefore, on expiry of the period stipulated in the agreement of sale, the landlord issued a letter dated 21.08.1993 stating that the agreement dated 04.07.1992 is cancelled and called upon the tenants to pay the arrears of rent. On such letter written by the landlord, a cause of action arose for the tenants to enforce their contractual right by filing a suit for specific performance but the tenants never filed any such suit. Thus, the tenants have allowed the period of three years, within which time a suit for specific performance has to be filed, to lapse and they did not enforce their right as an agreement holders. Thus, the tenants have allowed the period of three years, within which time a suit for specific performance has to be filed, to lapse and they did not enforce their right as an agreement holders. Thus, the agreement of sale dated 04.07.1992 can no longer be relied on by the tenants for not paying the rent. When the right of the tenants as an agreement holder has lost, it is not open for them to turn around and say that such right still subsists and they need not pay rent to the landlord. When the tenants did not assert their right as an agreement holder in time, the relationship of landlord and tenant does exist and the tenants are liable to pay rent to the landlord. The non-payment of rent by the tenants, therefore, entitle the landlord to seek for their eviction. Therefore, I am of the view that the order passed in RCOP No. 1946 of 1999 ordering eviction of the tenants on the ground of wilful default in payment of rent for the subsequent period from 01.08.1997 till 11.07.1999 is perfectly valid and it does not call for any interference by this Court. The learned Rent Controller is right in holding that there is default in payment of rent by the tenants. 21. The learned Rent Controller, while dismissing RCOP No. 2321 of 1997, did not take into account that the tenants have paid rent to the landlord by means of cheque subsequent to the expiry of the agreement of sale dated 04.07.1992. Even otherwise, when the landlord has issued a letter dated 21.08.1993, marked as Ex.P4 in RCOP No. 2321 of 1997, stating that the agreement of sale dated 04.07.1992 is cancelled, the tenants ought to have approached the Courts of law to assert their right as an agreement holder. In the absence of any such assertion made by the tenants, the learned Rent Controller ought not to have dismissed RCOP No. 2321 of 1997 filed by the landlord stating that he has not proved that the tenants have committed wilful default in payment of rent. 22. In the absence of any such assertion made by the tenants, the learned Rent Controller ought not to have dismissed RCOP No. 2321 of 1997 filed by the landlord stating that he has not proved that the tenants have committed wilful default in payment of rent. 22. It is brought to the notice of this Court that even after the landlord filed the second Original Petition, being RCOP No. 1946 of 1999 for eviction on the ground of wilful default in payment of rent for the subsequent period from 01.08.1997 till 11.07.1999, the tenants did not pay the rent. The tenants have neither paid the rent nor approached the Court to assert their right as an agreement holder. While so, the non-payment of rent by the tenants is wilful, wanton and deliberate and on that ground, they are liable to be evicted. 23. The learned counsel for the tenants/respondents relied on the decision of this Court reported in (John V. John vs. Goolamally Estates, Madras) (1989) Tamil Nadu Law Journal 311 to contend that when once an agreement of sale is entered into between the landlord and tenants, the jural relationship as landlord and tenants ceased to exist. This decision was subsequently negatived by this Court in the subsequent decisions reported in (Jessie Thavamani vs. Liakath Basha) 1996 1 CTC 398 wherein this Court, by referring to the decision of yet another decision reported in (Kuppulal vs. B.V.D. Sagunthala) 1987 (100) Law Weekly 577 and (Duraisami Nadar vs. Nagammal) 1981 (1) MLJU 35 held that the agreement of sale will not confer any right to the tenants for not paying the rent. In para-12 of this decision, it was held as follows:- "12. Ramanujam, J in an identical case, reported in Duraisami Nadar vs. Nagammal, 1981 (1) M.L.J. 35 observed as follows:- "A landlady filed a petition for eviction against the tenant on two grounds (1) Wilful default in payment of monthly rent and (ii) bona fide requirement of the building for the purpose of running a hotel business by her son. The application was resisted by the tenant on the ground that the relationship of landlady and tenant had come to an end by reason of his having entered in an agreement to purchase the property and that the requirement of the landlady for the purpose of running her son's hotel business was not bona fide. The application was resisted by the tenant on the ground that the relationship of landlady and tenant had come to an end by reason of his having entered in an agreement to purchase the property and that the requirement of the landlady for the purpose of running her son's hotel business was not bona fide. The Rent Controller accepted the defence of the tenant that he had entered into an agreement of sale with the landlady and held there was no relationship of landlady and tenant after the agreement. However, the Appellate Authority held that notwithstanding the agreement of sale, the relationship of landlady and tenant continued and ordered eviction. On revision against the order: Held:In this case there was no evidence that the parties agreed that the relationship of landlady and tenant should cease and the tenant's possession should be traced only to the agreement of sale. By merely entering into an agreement of sale the tenant did not acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under Section 53-A, Transfer of Property Act. Even assuming that the petitioner is entitled to the benefit of Section 35-A, the liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms. The liability to pay rent, therefore, continued. The default in payment of the rents in the present case was wilful and the requirement of the building by the landlady for the purpose of the business of her son was bona fide. The order of eviction had therefore to be sustained." 24. Thus, it is evident that this Court clearly held that only if there is specific recitals in the agreement of sale to the effect that the tenants need not pay rent after entering into the agreement of sale, the obligation of the tenants to pay rent will cease to exist. In this case, admittedly, there is no clause in the agreement of sale entered into between the landlord and tenants and therefore the tenants are under an obligation to pay rent to the landlord and non-payment of rent is wilful. 25. In this case, admittedly, there is no clause in the agreement of sale entered into between the landlord and tenants and therefore the tenants are under an obligation to pay rent to the landlord and non-payment of rent is wilful. 25. In the decision of the Honourable Supreme Court reported in (Imanbi vs. Azeeza Bee) 2000-2-Law Weekly 808 relied on by the learned counsel for the respondents, it was held that after entering into an agreement, the character of the tenants changed into that of an agreement holder. It is seen from the decision of the Honourahle Supreme Court that the facts in that case has a distinction with the facts of the case on hand. In that case, after an agreement of sale was entered into between the parties, a sale deed was executed and therefore it was held that the tenant was a co-sharer and co-owner of the premises in question. Under those circumstances, the Honourable Supreme Court held that the relationship of landlord-tenant ceased. As regards possession, the Honourable Supreme Court used the word 'already surrendered' which would indicate that possession of the petition mentioned premises was surrendered as per the sale agreement and sale deed. In the present case, the agreement of sale was not acted upon, the sale deed was not executed or the tenants did not assert their rights as an agreement holder by filing a suit for specific performance. Therefore, the above said decision relied on by the counsel for the respondents cannot be made applicable to the facts of this case. 26. Similarly, the decision of the Honurable Supreme Court reported in (R. Kanthimadhi and another vs. Mrs. Beatrice Xavier) 2000 2 Law Weekly 805, was relied on by the counsel for the respondents for the same proposition that once an agreement of sale is entered into, the relationship of landlord and tenant does not exist. In the said decision, reference was made to the earlier decisions rendered in (Arjunlal Bhatt Mall Gothani and others vs. Girish Chandra Dutta and another) 1973 (2) SCC 197 . In that case, it was argued that once the agreement of sale itself is cancelled, the jural relationship of landlord and tenant will revive. The Honourable Supreme Court did not accept such contention and held as follows:- "9. In that case, it was argued that once the agreement of sale itself is cancelled, the jural relationship of landlord and tenant will revive. The Honourable Supreme Court did not accept such contention and held as follows:- "9. Every conduct of the landlady right from the date of entering in to agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement, all clearly indicates, and has to be construed in law that she repudiated her old relationship of landlord and tenant. Thus after the parties entered into new cloak of seller and purchaser, their relationships were to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale did not perform their obligations, remedy may be availed in law as permissible under the law. Hence we have no hesitation to hold that courts below, including High Court, committed error in holding that the tenant committed wilful default. When appellant is no more tenant, how can non-payment be construed as wilful default. 27. From the above decision of the Honourable Supreme Court, two important points have to be noted. In that case, the Honourable Supreme Court, referring to the conduct of the parties, held that they have given up their right as landlord and tenant. It was further held that possession was given pursuant to the agreement of sale and therefore, the character completely changes. In the present case, as pointed out earlier, possession was not at all entrusted to the tenants and there is nothing indicated in the agreement of sale as regards possession. The conduct of the tenants in this case is such that even after expiry of the agreement of sale, rent was paid by way of cheque. Further, there is no recital in the agreement of sale that the tenants need not pay future rents. Therefore, the decision relied on by the counsel for the respondents cannot be made applicable to the facts of the case on hand. 28. The further conduct of the tenants is also to be taken note of. Under Ex.P3, a letter dated 02.08.1993, the landlord cancelled the agreement of sale and demanded for payment of rent. Therefore, the decision relied on by the counsel for the respondents cannot be made applicable to the facts of the case on hand. 28. The further conduct of the tenants is also to be taken note of. Under Ex.P3, a letter dated 02.08.1993, the landlord cancelled the agreement of sale and demanded for payment of rent. Again, under Ex.P4, a notice dated 06.09.1995 sent through the advocate, it was mentioned that the agreement stood cancelled the tenants were called to pay the rent. Atleast, at that point of time, the tenants should have taken some steps to assert their right, but it was not done. Thus, the tenants have been put on notice regarding the cancellation of agreement of sale in writing, however, they neither sent any reply, nor issued an independent notice intimating that their right as agreement holder continued nor filed a suit for specific performance to assert their right as an agreement holder. Contra, the tenants have tacitly accepted that the amount of Rs.7,00,000/- given as advance sale consideration can be adjusted towards payment of rent. Such a pleading on the part of the tenants to adjust the advance sale consideration towards payment of rent would categorically indicate that the tenants themselves have revived the relationship of landlord and tenancy and therefore, the tenants are guilty of non-payment of rent. 29. A copy of the agreement of sale dated 04.07.1992 entered into between the landlord and tenant had been produced and marked as Ex.P7 in RCOP No. 2321 of 1997. A perusal of the agreement of sale would indicate that there is no whisper about possession of the petition mentioned premises. Therefore, it is evident that the possession of the petition mentioned premises by the tenants is not as an agreement holder but only as a tenant under the landlord. Further, there is no stipulation in the agreement of sale that the tenants need not pay the future rent to the landlord. In the absence of such a clause in the agreement of sale, the tenants are liable to pay the rent to the landlord. This was also the view taken by this Court in the decision rendered in (S. Gurumurthy vs. N. Raman) 2007 (2) CTC 326 wherein in para No. 13, it was held as follows:- "13. In the absence of such a clause in the agreement of sale, the tenants are liable to pay the rent to the landlord. This was also the view taken by this Court in the decision rendered in (S. Gurumurthy vs. N. Raman) 2007 (2) CTC 326 wherein in para No. 13, it was held as follows:- "13. This Court in Kuppulal vs. Sagunthala, 1987 (1) MLJ 242 held that despite the alleged oral agreement of sale with one of the co-owners, even if it is found to be true, the tenant will still be under an obligation to pay the rent to the landlord. This Court reiterated that mere agreement of sale will not terminate the landlord-tenant relationship and the liability of the tenant to continue to pay the rent and consequently, the tenant will have to continue to pay the rent unless there are specific recitals to the contrary in the agreement of sale." 30. In the present case, even during the pendency of the first Rent Control Original Petition or the second case, the tenants have not paid the rent on the ground that they have entered into an agreement of sale with the landlord, which agreement came to an end on 03.01.1993. However, even after expiry of the agreement of sale, the tenants have paid some amount by means of cheque as mentioned above. The fair rent proceedings initiated by the landlord also became final as far as the tenant is concerned inasmuch as they have not filed any separate revision petition. Of course, it was brought to the notice of this Court that the tenants have filed C.R.P. SR No. 209925 of 2004 on 27.10.2004 before this Court which was returned for complying with certain defects. Thereafter, the tenants have not re-presented the same or filed an application for condonation of delay in re-presenting the defects pointed out therein. Tacitly, the tenants have admitted the fair rent fixed by the Appellate Authority inasmuch as they have not filed any a revision petition. Thus, as against the tenants, the fair rent proceedings have come to an end and therefore the tenants are liable to pay the rent at the rate fixed by the Appellate Authority. 31. Tacitly, the tenants have admitted the fair rent fixed by the Appellate Authority inasmuch as they have not filed any a revision petition. Thus, as against the tenants, the fair rent proceedings have come to an end and therefore the tenants are liable to pay the rent at the rate fixed by the Appellate Authority. 31. As far as the fair rent proceedings is concerned, even though the learned senior counsel for the landlord has argued that the Appellate Authority ought not to have reduced the rent especially when the petition mentioned premises is having very many locational advantages, a perusal of the order passed by the Appellate Authority would indicate that the Appellate Authority has examined the relevant details at great length and arrived at a sum of Rs.21,146/- towards fair rent, which in my considered view cannot be said to be incorrect. The Appellate Authority also given arithmetical calculations as to how the fair rent was fixed and the reason for reducing the fair rent fixed by the learned Rent Controller. Under those circumstances, I do not find any reason to interfere with the fair rent fixed by the Appellate Authority. 32. It is argued by the learned counsel for the respondents that the landlord is in possession of Rs.7,30,000/- even at the time of filing the Rent Control Original Petitions and therefore the question of wilful default does not arise. Admittedly, during the pendency of the Rent Control Original Petitions filed by the landlord, the tenants have not paid any amount towards rent. In fact, the tenants did not pay rent till date for the past 20 years. Even if the payment of Rs.7,30,000/- is taken in to account, still the tenants are liable to pay a huge amount towards rent. In fact, the tenants did not pay rent till date for the past 20 years. Even if the payment of Rs.7,30,000/- is taken in to account, still the tenants are liable to pay a huge amount towards rent. In this connection, the learned senior counsel for the revision petitioners produced a worksheet in the form of Memo of Calculation wherein it is indicated as follows:- filed for recovery of rent from 01.04.1993 till 31.07.1997 at the rate of Rs.3,000/- (Rs.3000 X 51 months) Rs.1,53,00.00 RCOP No. 1496 of 1999 filed for recovery of rent from 01.08.1997 till 31.09.1999 at the rate of Rs.3,000/- (Rs.3,000 X 37 months) Rs.1,11,000.00 Total arrears of rent at the contractual rate of Rs.3,000/- per month (Rs.3000 X 88 months) Fair rent fixed in RCA No.58/2002 at the rate of Rs.21,146/- per month from 01.10.1999 till date ie., 31.10.2013 (168 months) (Rs.21,146/- X 168) Rs.2,64,000.00Rs.35,52,528.00 Total arrears payable by respondents Rs.38,16,528.00 Rental advance with the landlordAdvance sale consideration paid to landlord Rs. 30,000.00Rs.7,00,000.00 Total Rs.7,30,000.00 33. Thus, as per the calculation memo filed on behalf of the landlord, the total arrears payable by the tenants as on 31.10.2013 works out to Rs.38,16,528/- and if the sum of Rs.7,30,000/- with the landlord is given credit to, still, the tenants are liable to pay Rs.30,86,528/-. Even before this Court, the tenants have not offered any explanation for non-payment of such a huge arrears of rent and therefore, certainly, the tenants are guilty of default in payment of rent, which default is definitely a wilful default as contemplated under the Act. 34. Lastly, it has to be pointed out that even during the pendency of the two Rent Control Original Petitions filed by the landlord for wilful default in payment of rent, the tenants did not pay any rent at all. In this context, it will be useful to refer to the decision of this Court reported in (K. Muthu vs. Mohammed Yusuf Khan and others) 2008 I Law Weekly 283 wherein, this Court, in para No.16, 17 and 18, held as follows:- "16. In (Vasantha Leela vs. N. Vadivelu Chettiar) ( 1998 (3) CTC 467 ) it was held that 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. In (Vasantha Leela vs. N. Vadivelu Chettiar) ( 1998 (3) CTC 467 ) it was held that 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. Further, in the very same decision, by quoting the 17. In (The Nilgiris Cooperative Marketing Society, rep. by its Secretary vs. C.T. Uthandi, 1998 (2) MLJ 745 = 1998 (2) Law Weekly 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 RC.O.P. No. 1727 of 2001, one would expect the tenant to pay rent regularly every month at least after he has entered appearance in E.P. No. 293 of 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." 35. In the present case also, the tenants did not pay the rent to the landlord during the pendency and therefore, the tenants are liable to be evicted. 36. In the result, (i) CRP NPD No. 2459 of 2004 filed by the landlord is dismissed confirming the order dated 23.07.2004 made in R.C.A. No. 75 of 2002 on the file of VIII Judge, Small Causes Court, Chennai reversing the Order dated 30.10.2001 made in R.C.O.P. No. 1945 of 1999 on the file of XIV Judge, Small Causes Court, Chennai. (ii) CRP NPD No. 2722 of 2004 filed by the landlord is allowed by setting aside the order dated 23.07.2004 made in R.C.A. No. 59 of 2002 on the file of VIII Judge, Small Causes Court and consequently, the Order dated 30.10.2001 made in R.C.O.P. No. 1946 of 1999 on the file of XIV Judge, Small Causes Court, Chennai is restored. Resultantly, RCOP No. 1946 of 1999 filed by the landlord is allowed. Resultantly, RCOP No. 1946 of 1999 filed by the landlord is allowed. (iii) CRP NPD No. 2723 of 2004 filed by the landlord is dismissed confirming the order dated 23.07.2004 made in R.C.A. No. 58 of 2002 on the file of VIII Judge, Small Causes Court, Chennai reversing the Order and Decree dated 30.10.2001 made in R.C.O.P. No. 1945 of 1999 on the file of XIV Judge, Small Causes Court, Chennai. (iv) CRP NPD No. 2724 of 2004 filed by the landlord is allowed setting aside the order dated 23.07.2004 made in R.C.A. No. 566 of 1999 on the file of VIII Judge, Small Causes Court, Chennai and consequently, the Order dated 05.04.1999 made in R.C.O.P. No. 2321 of 1997 on the file of X Judge, Small Causes Court, Chennai is restored. Resultantly, RCOP No. 2321 of 1997 is allowed.