Madras High Court
T. Easwara Rao vs N.E. Ansari(Decd) And Six Others on 1 December, 1998
Equivalent citations: 1999(1)CTC221, (1999)IMLJ401
ORDER
1. The deceased respondent/landlord filed the petition in R.C.O.P.No.83 of 1987 on the file of the learned Rent Controller/District Munsif, Ootacamund against the petitioner/tenant on the ground that the tenant had committed wilful default in payment of rent and for his occupation, and also for additional accommodation, with respect to the premises in question. That was resisted by the tenant by filing a counter. The Rent Controller in the order dated 4.4.1989 ordered eviction on the ground that the tenant had committed wilful default in payment of rent and that the requirement of the landlord for additional accommodation is a bona fide one. On the basis of the abovesaid findings the Rent Controller ordered eviction. Aggrieved, the tenant filed appeal in R.C.A.No.28 of 1989 on the file of the learned Appellate Authority/District Judge, The Nilgiris at Ootacamund, who also concurred with the findings of the Rent Controller and confirmed the order of eviction and dismissed the appeal. Still aggrieved, the tenant has filed the above revision.
2. Admittedly, the monthly rent was Rs.20 per month.
According to the landlord, the tenant did not pay the rent for the period from 1.4.1986 to 30.9.1987. According to the tenant in the R.C.O.P., for the months of April and May, he paid the rent which was admitted by the landlord also. The Petitioner/tenant on the basis of Exs.B-1 and B-2 has come forward with the plea that he had paid the sum of Rs.80 towards four months rent. So, according to the tenant, the landlord received the rent for six months from 1.4.1986, and the balance amount was paid on the date of first hearing of the case, which was also admitted by the landlord in his evidence. On the basis of the abovesaid admitted facts, the learned counsel for the petitioner, relying on the decisions in Krishna Mudaliar, v. Lakshmi Ammal, 1996 (2) L.W. 467 (S.C.), and in Abdul Hammed v. M. Sultan Abdul Kader, 1996 (2) L.W. 525, has submitted that the contention that the tenant committed wilful default in payment of rent cannot be sustained.
3. In answering to the abovesaid submission, the learned counsel appearing for the respondent/landlord has submitted that merely because the tenant had deposited the entire amount on the date of first hearing of the R.C.O.P., it can be said that the wilful default committed already by the tenant can be absolved, and thereby the tenant can escape from the order of eviction. According to the learned counsel, the decisions cited by the learned counsel for the petitioner cannot be relied on to the facts of the present case.
4. In the present case, after the purchase of the premises by the respondent on 24.3..1986 he issued the notice under Ex.A-1 dated 1.4.1986 asking the tenant to pay the rent. But, till 30.9.1987, admittedly, except for the six months, the tenant did not pay the rent till the date of filing of the R.C.O.P., and deposited the same on the date of the first hearing of the R.C.O.P. Moreover, the tenant in the R.C.O.P. has not given any valid explanation for non-payment of the said rent, except saying that he sent the rent by money order but it was refused. It is well settled that merely an attempt to send the rent by money order and thereafter if the tenant kept quiet, it cannot be said that the tenant has not committed wilful default in payment of rent. Admittedly, the tenant has not taken any steps under Section 8 of the Act. The authorities below have also taken into consideration of the explanation given by the landlord for refusing to receive the rent sent by the tenant. In view of the above, the findings of the authorities below holding that the tenant has committed wilful default in payment of the rent cannot be interfered with.
5. The learned counsel for the petitioner has relied on the proviso to Section 10(2)(i) of the Act in support of his submission, which runs as follows:-
"Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's 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."
The said proviso to section 10(2)(i) of the Act is for the purpose of giving an opportunity to the tenant whose default was found to be not wilful, to pay the rent within 15 days so as to enable the Rent Controller to reject the application. So, for invoking the said proviso, the condition precedent is that the Rent Controller should come to the conclusion that the tenant's default was not wilful.
6. The submission of the learned counsel for the petitioner is that if a tenant had deposited on the effective date of hearing, the default cannot be construed as wilful, whatever may be the quantum and whatever may be the period of default. I find it difficult to accept the said submission. Under the said Act, only to presume wilful default in payment of rent, explanation to section 10(2)(i) has been introduced. So, if the submission of the learned counsel is accepted it amounts to rewriting the provision of the Act. Such a presumption as suggested by the learned counsel cannot be arrived at, merely because after three years if a tenant deposits or pays the rent on the first hearing date without any valid reason. For example if a tenant did not pay any rent inspite of two months notice, under Explanation to section 10(2)(i) of the Act, then the legal presumption is wilful and the landlord need not further establish the same. Even in this case, if the tenant deposits or pays the rent on the first effective date of hearing, can it be said, Explanation to section 10(2)(i) of the Act cannot be applied. So, merely because the tenant pays or deposits the arrears of rent on the first hearing date, it cannot be said that the landlord cannot sustain the petition, if otherwise it is established that the tenant had committed wilful default in payment of rent.
7. The Apex Court in the decision in Krishna Mudaliar, v. Lakshmi Ammal, 1996 (2) L.W. 467 had dealt with the case where the landlord treated the tenant as a trespasser and filed a suit for ejectment, but it was held that he was only the tenant. Thereafter he was served with notice in 1981 demanding arrears of rent for the period from March 1977 to August 1981. In the reply notice the tenant explained the delay in payment of rent saying that he could not pay the rent because the respondent therein never accepted him as a tenant and refused to receive the same. On the basis of the said dispute between the parties, the Apex Court has come to the conclusion that the non-payment of rent cannot be construed as wilful and then applied the proviso to section 10(2)(i) of the Act to reject the petition for eviction accepting the case of the appellant/tenant that he has paid the rent immediately after filing of the ejectment-application. The Apex Court did not decide the case only on the basis of the deposit of the amount immediately after filing of the application. The Apex Court has found that the tenant has not committed any wilful default, only on the basis of the earlier conduct of the landlord.
8. Further, in the decision in Abdul Hameed v. M. Sultan Abdul Kader, 1996 (2) L.W. 525, AR. Lakshmanan, J., has also followed the abovesaid decision of the Apex Court in Krishna Mudaliar, v. Lakshmi Ammal, 1996 (2) L.W. 467. In the said decision, AR. Lakshmanan, J., has held that the tenant has not committed wilful default in payment of rent, in view of the peculiar circumstances of the said case in which the landlord used to receive the rent in lumpsum for four or six months. The learned Judge also had accepted the argument of the counsel for the petitioner therein that the Rent Controller had correctly come to the conclusion that the non- payment of rent was only due to the practice which had existed between the landlord and tenant and the tenant was not given to understand that the landlord was going to utilise the situation to get rid of the tenant. Along with that, the learned Judge has also taken into account of the fact that the tenant has paid the rent on the first hearing of the case. In that case also the learned Judge on the basis of the facts of that case found that the default of the tenant cannot be construed as wilful, and, in addition to that, the learned Judge has taken into consideration of the fact that the tenant has deposited the amount on the date of the first hearing of the case, to reject the eviction petition filed on the ground that the tenant has committed wilful default in payment of rent. So, the said decision also cannot be relied on as a precedent in support of the submission of the learned counsel for the petitioner that though the tenant had committed default in payment of rent which was wilful, but on deposit of the amount on the first hearing date of the case, such ground for eviction is not available to the landlord. The deposit of the amount on the first hearing date of the case may be taken into consideration only along with other factors to decide whether the tenant's action in committing default in payment of rent due to his supine indifference or not. So, the said decisions cannot be made applicable to the facts of the present case, and in support of the principle of law suggested by the learned counsel.
9. With respect to the premises required by the landlord for additional accommodation, the authorities below had concurrently found that the intention of the landlord is a bona fide one. The only objection that has been raised by the petitioner is that in the petition, the landlord has not stated anything about the relative hardship, which is a mandatory requirement to maintain the petition under section 10(3)(c) of the Act. In support of his submission, the learned counsel for the petitioner has relied on the decision in Krishnaswamy v. Arumugam, 1993 (1) M.L.J. 122, wherein, Thanikkachalam, J., as he then was, has held as follows:-
"It may be true, that the landlord required the petition premises by way of additional accommodation. But the fact remains that the petition for eviction on the ground of additional accommodation must be filed in accordance with the provisions contained under sec.10(3)(c) of the Act. In a petition for eviction filed under sec.10(3)(c) of the Act, the landlord should clearly state that he required the petition premises by way of additional accommodation. But according to the provision, the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In order to decide this question of hardship, there must be proper pleadings in the petition. In the present case, the petition was filed by the landlord under sec.10(3)(c) of the Act, but there was no averment regarding the hardship as contemplated under the proviso to sec.10(3)(c) of the Act. If the hardship is not pleaded in a petition filed under sec.10(3)(c) of the Act that is fatal to the petition (see the decisions in Radhakrishnan v. Seethalakshmi, 1988 (1) L.W.67 and Annakkili Ammal v. H.C. Hussain, 97 L.W.116. In the present case, the petition filed under sec.10(3)(c) of the Act contains no averment with regard to the hardship as contemplated under the proviso to sec.10(3)(c) of the Act and hence the petition is not maintainable".
Per contra, the learned counsel for the respondent has submitted that the fact of lack of pleadings has not been raised before the authorities below. But the parties went into the box knowing the scope of section 10(3)(c) of the Act. Even before the appellate authority, such a point was not raised by the petitioner. To support his submission, the learned counsel for the petitioner has drawn my attention with respect to the grounds filed before the appellate authority. The learned counsel has relied on the decision in Ragupathy, G.R. v. Dr.K. Sankar, Etc. 1996 (2) L.W. 494, wherein S.S. Subramani, J., has held as follows:-
"I cannot agree with the said submission of the learned counsel for more than one reason. The contention of lack of pleadings was not raised before the Authorities below, and I further find that the lack of pleadings, if any, has not prejudiced the case of the tenant, petitioner herein, in any way. The object of pleading is only to put the parties on notice, of the real matter in issue. But, if the parties are already aware of the real matter in issue and they have also joined in issue over the same, the lack of pleadings can never be treated as ground to reject the claim. Pleadings before Rent Controller cannot be given that much of importance given to pleadings in a suit before civil Court. Proceeding before a Rent Control is summary in nature and the provisions of the Code of Civil Procedure are not fully made applicable to the extent provided under the statute. We must further note that the Rent Control Court is not a Civil Court and the Act itself is more or less a self-contained Code, so far as the relationship of landlord and tenant is concerned.
I do not find that such a ground is taken in the Memorandum of Revision even though as many as 31 grounds have been taken. Before the lower appellate court and also before the Rent Controller, this objection was not taken.
Learned counsel for the petitioner also submitted that unless there is a pleading that the landlord or his son has no other building of their own, the statutory conditions or qualifications to file an eviction petition are not fulfilled and, therefore, the tenant is not expected to answer the same. But, unfortunately for the petitioner, I find that the tenant has anticipated the case of the landlord, and in paragraph 9 of the counter, he himself has stated that the petitioner has other buildings of his own and, therefore, he has not satisfied the statutory conditions. So, he himself is aware of the qualifications to seek eviction, and that is why, he wanted the eviction petition to be rejected on the ground that the respondent/landlord has got other buildings of his own. When he himself is aware of the real matter in dispute, the lack of pleadings, even if any, is not prejudicial to his interest".
10. In the present case the petitioner, in the petition filed in R.C.O.P., has set out the hardship in paragraph 5 of the petition. The tenant has set out the relative hardship in paragraph 6 of the counter. In the evidence, the parties have spoken about the relative hardship. Considering the available pleadings and evidence, the Rent Controller found that the hardship which may be caused to the tenant by granting the order of eviction will not outweigh the advantage to the landlord. Though the appellate authority has not given any specific finding about the relative hardship, he has confirmed the findings of the Rent Controller.
11. While dealing with the pleadings and proof of facts in the rent control proceedings, M.N. Chandurkar, C.J., as he then was, in Ruth Margaret Gonsalves v. K.T.H. Presses by its proprietor, Kumar, 1987 (100) L.W. 258 has held as follows:-
"Pleadings in such matters cannot be construed with the strictness with which pleadings in civil suits are construed, the case of the landlord or the tenant, as the case may be, has to be read as a whole and on the evidence and the pleadings, there is no doubt in this case that here was a landlady who had the problem of an unemployed son on her hand and she was making some additional income by making some small things for the benefit of her acquaintances and selling them".
12. While dealing with similar facts of the case., Abdul Hadi, J., in the decision in Sheriff., V. Kathija Beevi & another, 1994 (1) L.W. 406 has held as follows:-
"so, simply because there is no explicit plea is the rent control original petition of the landlords themselves, it cannot be contended that the evidence which is admittedly there regarding the above aspect in the present case, should not be looked into and that eviction order should not be passed".
13. The Apex Court in (sic) V.N. Dhana Rao, has explained the dictum, "No amount of evidence can be looked into on a plea which was never put forward", held that "But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue".
14. Therefore it is clear that at the time when the enquiry in the rent control proceedings went on the hardship and relative hardship was in fact in contemplation between the parties and so there is no bar to the authorities below in looking into the evidence on that aspect. In this case, admittedly, though in the R.C.O.P. the landlord has not explained the relative hardship, the materials are available in the counter and also in the evidence, which have been taken into consideration by the Rent Controller and found that the hardship of the tenant will not outweigh the advantage to the landlord. The Rent Controller has also taken into consideration of the fact which is admitted by the tenant in the R.C.O.P. that he is having a house of his own. The Finding of the Rent Controller has been confirmed by the appellate authority. In view of the above, the submission of the learned counsel for the petitioner that there is no plea regarding the relative hardship and so the R.C.O.P. is not maintainable on the basis of the decision in Krishnaswamy v. Arumugam, 1993 (1) M.L.J. 122 cannot be sustained in view of the decisions of this Court and of the Apex Court.
15. Consequently, the orders of the authorities below are confirmed. This Revision is dismissed. No costs.