Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1347 (MAD)

J. Amrit v. T. N. Prakash

2021-04-17

R.SUBRAMANIAN

body2021
JUDGMENT : (Prayer: Civil Revision Petition filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, as amended, to set aside the judgment and decree passed in R.C.A.No.65 of 2007 dated 16.03.2011 on the file of Principal Sub Court, Madurai by confirming the judgment and decree passed in R.C.O.P.No.2 of 2002 dated 11.12.2006 on the file of learned Principal District Munsif Court, Madurai Town.) 1. The above Civil Revision Petition arises under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (hereinafter referred to as the Act for the sake of convenience). The landlord who failed in his attempt to get the tenant evicted on the ground that the tenant committed wilful default in payment of rent and on the ground that the tenant had ceased to occupy the demised premises for a period of more than four months under sections 10 (2) (i) and 10 (2) (vi) of the Act is on Revision. According to the landlord the tenant had committed default on payment of the monthly rent at Rs. 650 per month from November 2000 to December 2001 that is for a period of 14 months. It was also claimed that the tenant has not opened the business premises for more than eight months and has thus rendered himself liable for eviction on the ground that he ceased to occupy the building. 2. The said petition was resisted by the tenant contending that the default is not wilful. The tenant would further claim that he has paid an advance of Rs.10,000 to the predecessor in interest of the landlord and therefore there is no question of his having committed any default in payment of the rent. It was further claimed that since the landlord and one Uthamkumar attempted to forcibly evict the tenant, he was forced to file a civil suit in O.S.No: 865 of 1997 on the file of the principal District Munsif, Madurai seeking a permanent injunction restraining the landlord from interfering with his peaceful possession and enjoyment of the premises. It is claimed that the landlord remind ex parte in the said suit and eventually the suit came to be decreed on 1-11-2000. The tenant would further claim that a legal tender of rent made by him was refused and the demand draft was returned by the landowner. It is claimed that the landlord remind ex parte in the said suit and eventually the suit came to be decreed on 1-11-2000. The tenant would further claim that a legal tender of rent made by him was refused and the demand draft was returned by the landowner. A notice was issued on 7-2-1998 calling upon the landlord to specify the bank account in order to enable the tenant to deposit the rent. Though the notice was received by the landlord, he did not choose to send any reply. It is claimed that the tenant had been sending the rent regularly by way of demand drafts. It was therefore claimed that there was no default in payment of rent much less wilful default. The tenant would further add that till October 2000 rent was sent by bank drafts and thereafter the petitioner/landlord agreed to receive the rent in person. The tenant was informed by Mr Uthamkumar, that the petitioner had gone to his native place and he would receive the rent upon his return. Upon receipt of the notice in the Rent Control Original Petition the tenant had sent the rent by way of demand draft even before the first hearing of the rent control original petition. The absence of demand on the part of the landlord, for the arrears of rent, was also highlighted as a defence to the claim of wilful default. As regards the other ground of eviction the tenant would contend that he has been doing business continuously in the said premises and that the claim that he has stopped his business or that he had ceased to occupy the premises is incorrect. 3. At trial the landlord examined himself as PW 1 and the tenant was examined as RW 1. While exhibits P1 to P3 were produced by the landlord exhibits R1 to R18 were produced by the tenant. Upon a consideration of the evidence on record the learned Rent Controller accepted the defence of the tenant to the effect that he will be absolved of the consequences of default since he had paid the entire arrears before the first hearing of the Rent Control Original Petition. Upon a consideration of the evidence on record the learned Rent Controller accepted the defence of the tenant to the effect that he will be absolved of the consequences of default since he had paid the entire arrears before the first hearing of the Rent Control Original Petition. The learned Rent Controller also, on the basis of the documents produced by the tenant demonstrating that he had paid electricity charges, telephone charges etc, rejected the claim of the landlord that the tenant has ceased to occupy the building. On the said findings the learned Rent Controller concluded that the landlord is not entitled to succeed and dismissed the eviction petition. Aggrieved, the landlord preferred an appeal in R.C.A.No: 65 of 2007. The learned Appellate Authority upon a reconsideration of the evidence on record concluded that since the landlord had not issued the two months notice demanding rent he cannot be heard to contend that the tenant has committed wilful default on payment of rent. The Appellate Authority also agreed with the conclusions of the learned Rent Controller on the question of the tenant ceasing to occupy the building. Upon the said conclusions the learned Appellate Authority dismissed the appeal. Hence this Revision by the landlord. 4. This Revision Petition was originally allowed by this court by order dated 28-3-2018. The tenant had filed a review petition in Review Application (MD) No: 262 of 2019. I had by an order dated 15-3-2021 allowed the review application and directed rehearing of the Civil Revision Petition. I have heard Mr.M.S. Suresh Kumar learned counsel appearing for the petitioner and Mr.J.Barathan learned counsel appearing for the respondent. 5. Mr.M.S. Suresh Kumar learned counsel appearing for the petitioner/ landlord would vehemently contend that the Appellate Authority was not justified in concluding that the non-issuance of the two months notice is fatal to the claim of the landlord. He would point out that once the tenant is held to be a statutory tenant entitled to the protection under the Act a notice under Section 106 of the Transfer of Property Act is not mandatory to enable the landlord to seek eviction of the tenant. Pointing out the language of the explanation to Section 10 (2) (i) of the Act the learned counsel would submit that the explanation only creates a presumption in cases where the notice had been issued. Pointing out the language of the explanation to Section 10 (2) (i) of the Act the learned counsel would submit that the explanation only creates a presumption in cases where the notice had been issued. Therefore according to the learned counsel the non issuance of notice would not denude the landlord of the right to apply for eviction under Section 10 (2) (i) of the Act. He would also contend that the deposit of rent or payment of rent by the tenant subsequent to the initiation of the proceedings would not absolve the tenant of the consequences of default more so when the tenant had not been regular in payment of rent even during the pendency of the proceedings. He would also rely upon the judgements of this court in 2002-1- LW 796, 1998-2-MLJ 745 and 2008-1-TNCJ 540, in support of his contentions. On the ground of cessation to occupy the learned counsel would submit that we have production of bills would not prove occupation of the building by the tenant. He would also point out that some of the bills produced do not relate to the business of the tenant. 6. Contending Contra Mr.J.Barathan learned counsel appearing for the respondents would submit once the tenant has paid the entire arrears before the first hearing of the Rent Control Original Petition he is absolved of the consequences of default. He would further argue that the payment of rent for the subsequent period in lump-sum would not give the landlord a cause of action to seek eviction of the tenant since the original petition itself was without cause of action. He would invite my attention to the judgements of the Supreme Court in 1998 (3) SCC 58 and 2002 (1) MLJ 186 in support of his submissions. On the second ground the learned counsel would submit that the tenant has produced bills for purchase of goods and he has produced the electricity bills as well as telephone bills to show that the business is being run in the premises. He would also point out that both the authorities have concurrently found that the tenant has been running the business and therefore there is no ground to interfere with the said conclusion of the authorities constituted under the act. I have considered the rival submissions. 7. He would also point out that both the authorities have concurrently found that the tenant has been running the business and therefore there is no ground to interfere with the said conclusion of the authorities constituted under the act. I have considered the rival submissions. 7. Clause 1 of Sub section 2 of section 10 of the Act provides that a landlord can seek eviction of a tenant if the tenant has not paid or tendered their rent due by him in respect of the building within 15 days after the expiry of the time fixed under the agreement of tenancy or in the absence of any such agreement by the last day of the month following that for which rent is payable. The language of the section essentiality enjoins a duty on the part of the tenant to tender the rent as and when it falls due. The proviso to sub-section 2 vests discretion in the learned Rent Controller to direct the tenant to pay the arrears of rent even while coming to a conclusion that the default is not wilful. The explanation that was added by Act 23 of 1973 creates a presumption or mandates that a default in payment of rent shall be construed as wilful if the default continues even after the issuance of two months notice by the landlord claiming the rent. There is no provision akin to section 11 of the Madras City Tenants Protection Act 1921 in the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 which requires the landlord to issue a notice determining the tenancy or demanding the rent before initiation of proceedings under the Act. In Janakiraman- Vs- Radhakrishnan, reported in 2001-3-LW 792 this court had held that no notice is necessary to enable the landlord to sue for eviction in terms of section 10 of the Act. It is therefore clear that the ground on which the learned Appellate Authority had non-suited the appellant/petitioner herein is clearly erroneous. However it has to be seen as to whether or the payment of rent by the tenant after the institution of the proceedings and before the first hearing would absolve him of the consequences of default in payment of rent. 8. However it has to be seen as to whether or the payment of rent by the tenant after the institution of the proceedings and before the first hearing would absolve him of the consequences of default in payment of rent. 8. The consequences of the fact that the tenant had accumulated the rent and paid it in lump-sum even during the pendency of the proceedings before the Rent Controller, the Appellate Authority and this revision should also be gone into. It is seen from the evidence on record that the original petition was filed in to court on 7-1-2002. The tenant had taken a defence that he had paid Rs. 10,000 to the predecessor in interest of the landlord. The Rent Controller had rejected the said contention of the tenant and held that the tenant had not established the payment of Rs. 10,000 as advance. The short ground on which the learned Rent Controller had concluded that the tenant had not committed wilful default in payment of rent is that the tenant had after the initiation of the proceedings before the Rent Controller, on 1-3-2002 sent a demand draft for Rs. 10,400 being the arrears of rent for the period from November 2000 to February 2002 and the landlord has received the same without protest. From the above conduct of the tenant the fact that the rent for the period from November 2000 to December 2001 was not paid till 1-3-2002 stands proved. Whether the conduct of the tenant in sending the arrears of rent after receipt of notice in the rent control original petition would purge the default is the question to be decided. The learned counsel for the landlord would also draw support from the fact that the tenant had not been paying the rent regularly even during the pendency of the proceedings and he has been paying the rent in lump-sum as and when he pleases to contend that the default is wilful. 9. No doubt in the two decisions relied upon by the learned counsel for the respondent/tenant the Honourable Supreme Court has held that in the tenant pays the arrears of rent before filing of the original petition for eviction he will be absolved of the consequences of the default. 9. No doubt in the two decisions relied upon by the learned counsel for the respondent/tenant the Honourable Supreme Court has held that in the tenant pays the arrears of rent before filing of the original petition for eviction he will be absolved of the consequences of the default. The Supreme Court has further held that the fact that the tenant, in such cases, had paid the rent in lump-sum during the pendency of the proceedings would not aid the landlord to seek eviction. There is a factual aspect which has been overlooked by the Rent Controller while concluding that the payment of rent before the first hearing would absolve the tenant of the consequences of default. In both the cases relied upon by the learned counsel for the respondent tenant, from the facts, it could be seen that the arrears of rent was paid prior to the institution of the proceedings and therefore the Honourable Supreme Court concluded that there is no cause of action for the institution of the proceedings. Having held that there is no cause of action for the institution of the proceedings the Honourable Supreme Court went on to point out that subsequent default cannot feed the cause of action which was absent at the time of filing of the petition in the court of first instance. I do not think that the proposition of law as laid down by the Honourable Supreme Court in the said decisions could be applied to all cases across the board were the tenant either pays or deposits the arrears of rent after the institution of the original proceeding by the landlord. In the Nilgiris Cooperative Marketing Society represented by its Secretary, Mr.K.Halan having its registered office at ‘Sailing House’ at Ootacamund -Vs- T.Uthandi reported in 1998 (2) MLJ 745 , this court had held that payment of the entire arrears of rent on the day fixed in the summons for appearance of the tenant will not absolve him of the disqualification which he had already suffered. While doing so this court had observed as follows:- “I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue anymore in occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for nonpayment of the same as and when it became due. There cannot be any hard and fast rule to that effect because if that is the position of law, then there can never be an order of eviction on the ground of wilful default if the tenant who had been indifferent all along been paying the rent, suddenly becoming wiser and paying the rent after the rent control petition was filed. That does not appear to be the trend of the decisions referred to above.” This court had further observed “Mere payment of rent by the tenant as stated above in this case not absolve him of the disqualification which she had suffered already.” 10. In Manickam Pillai –Vs- Sakunthala and others, reported in 2002 (1) LW 796 , this court had re-examined the position and affirmed the conclusions arrived at in the Nilgiris Co-operative Marketing Society cited supra. While considering the scope of the term wilful default and the language of clause i of sub section 2 of section 10 of the Act this court held that the Tamil Nadu Act does not visualise any such situation which would absolve the tenants conduct of default. Useful reference could also be made to the judgement of this court in K.S.Pandian-VS-Rukmani bai, reported in 2001-1-LW 801 wherein this court after referring to almost all the judgements in the context and after an exhaustive analysis of the provisions of law had concluded as follows: “43. Therefore, on the issues raised before me the following are my conclusions:- (a) There is no compulsion on the landlord to issue a notice demanding arrears of rent as provided under the Explanation. He can directly file a petition for eviction on the ground of wilful default and substantiate that the default was wilful. Therefore, on the issues raised before me the following are my conclusions:- (a) There is no compulsion on the landlord to issue a notice demanding arrears of rent as provided under the Explanation. He can directly file a petition for eviction on the ground of wilful default and substantiate that the default was wilful. (b) If notice is issued under the Explanation, then the landlord impliedly waives the past conduct of the default and has to wait till the end of two months period and if the tenant does not pay even after the said notice, a rebuttable presumption of wilful default would arise. If the entire arrears are paid within the period, the landlord cannot seek to evict the tenant. (c) If after issuing notice of termination and eviction, and before filing of the petition, the tenant pays the entire arrears, the choice is left to the landlord either to accept the rent under protest or not to accept the rent. In either case the landlord is entitled to proceed further to file the petition for eviction. But if he accepts the rent without any demur and if the resultant position is that there are no arrears of rent as on the date of the eviction petition, the eviction petition would be liable to be dismissed. (d) When once the eviction petition had been filed, there is no question of landlord losing his right to pursue the same notwithstanding the fact whether the tenant had deposited or was willing to deposit the arrears of rent at the first hearing of the petition.” 11. Similar view has been expressed by this court in Nagarajan versus A.K.Jambulinga, reported in 2008 (1) T.N.C.J. 540. From the above decisions it is clear that the tenant will not be automatically absolved of the disqualification/consequences of non-payment of rent merely on the ground that he has either paid or deposited the rent due after the initiation of the original proceeding. In the case on hand the relationship between the landlord and the tenant is strained at least from 1997. The tenant has been sending the rent by demand drafts at irregular intervals. It is also seen that the tenant had issued a notice to the landlord demanding the bank account number on 7/2/1998. But the tenant has not chosen to take proceedings under Section 8 of the Act. The tenant has been sending the rent by demand drafts at irregular intervals. It is also seen that the tenant had issued a notice to the landlord demanding the bank account number on 7/2/1998. But the tenant has not chosen to take proceedings under Section 8 of the Act. The explanation offered by the tenant that the landlord agreed to receive the rent in person and he did not turn up, in my considered opinion, is a very weak explanation. Though the tenant had produced several documents there is nothing to show that there was an attempt by the tenant to pay the rent at any point of time between November 2000 to December 2001 namely the period of default. I am therefore unable to affirm the conclusion of the learned Rent Controller to the effect that the payment of rent by the tenant at the first hearing or prior to that would absolve him of the consequences of the default. The conduct of the tenant subsequent to the filing of the petition should also be noticed. The tenant has been regularly irregular in payment of rent. Even during the pendency of this revision the tenant has not been prompt and payment of rent he has chosen to pay the rent at his whims and fancies at irregular intervals. I am therefore of the considered opinion that the tenant had rendered himself liable for eviction on the ground of willful default. 12. As regards the other ground for eviction namely ceasing to occupy the building I find that the tenant has produced overwhelming evidence to show that he has been carrying on business in the demised premises. A perusal of the documents namely exhibits R10 to R18 would go to show that the tenant has been carrying on business in the demised premises during the relevant period. Though the learned counsel for the landlord would contend that these documents themselves would not establish that the tenant was carrying on business, I am unable to accept the said submission in view of the fact that there is no other means by which a tenant can demonstrate that is actually occupying a business premises. In fact the receipts for payment of electricity charges produced as exhibits R11, R12 and R18 would go to show that different amounts have been paid for different periods. In fact the receipts for payment of electricity charges produced as exhibits R11, R12 and R18 would go to show that different amounts have been paid for different periods. Such payment would conclusively show that the tenant as been running the business during the relevant period. I therefore do not find any reason to interfere with the findings of the authorities on the second ground of eviction namely ceasing to occupy the building. In the light of the conclusions reached above the Revision Petition stands allowed. The orders of the learned Appellate Authority and the learned rent control are set aside. The petition in R.C.O.P.No: 2 of 2002 will stand allowed and there will be an order of eviction of the tenant on the ground of willful default alone. The other ground of eviction namely ceasing to occupy stands rejected. Considering the circumstances of the case I make no order as to costs. 13. Since the tenant has been doing business in the demised premises I deem it appropriate to grant six months time for the tenant to vacate and hand over possession of the premises to the landlord. In order to avail of the benefit of the time granted the tenant shall file an affidavit undertaking to vacate and hand over vacant possession of the demised premises to the landlord on or before 30th of October 2021. The affidavit shall be filed on or before 30th of April 2021. If the tenant fails to file the affidavit, as above, the landlord will be at liberty to take possession through court as if no time has been granted by this court.