Madras High Court
M.A. Abdul Jabbar vs M.S. Muhammed Yahya on 8 January, 2007
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition is directed against the concurrent findings of the Authorities in R.C.A. No. 436 of 2001 and R.C.O.P. No. 1358 of 1995 ordering eviction on the ground of wilful default.
2. The demised property is the residential house bearing Door No. 4 (Old No. 148-A) Angappan Street, Chennai - 1. The Respondent / Landlord is the Receiver appointed by the Court as per the order in I.A. No. 28963 of 1977 in O.S. No. 4282 of 1977 to manage the properties including the petition property of the private family estate created by K.M. Mohammed Maraikkayar. The Petitioner became the tenant and the rent payable is Rs. 400/- per month. Stating that the Petitioner has willfully defaulted in payment of rent from October 1986, the Respondent / Landlord filed Eviction Petition under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (for short "the Act"). The period of default is from October 1986 to May 1995 and the total arrears is Rs. 42,000/-.
3. The Petitioner / Tenant contested the eviction petition contending that he had earlier preferred R.C.O.P. No. 1033 of 1987 for deposit of rents into the Court. The said R.C.O.P was dismissed for default on 07.03.1988. Subsequently, it was restored and finally allowed on 06.10.1988. Pursuant to that order, the Petitioner / Tenant has deposited Rs. 33,850/- on various dates to the credit of R.C.O.P. No. 1033 of 1987. Besides, the Petitioner has also paid the amount towards Corporation Tax and arrears of Water and Sewerage Tax. That apart, the Petitioner has also sent M.Os to the Landlord and the same was received by him. According to the Petitioner, upto November 1995, rents have been paid regularly to the Respondent and there is no wilful default.
4. Referring to the pattern of deposit of rent in R.C.O.P. No. 1033 of 1987, the Rent Controller found that the Tenant has accumulated the rents and thereby committed wilful default. Pointing out that even during the pendency of the petition, the Tenant was irregular in paying the rent, the Rent Controller ordered eviction on the ground of Wilful default. Confirming the order of eviction, the Appellate Authority has observed that without depositing the rent in R.C.O.P. No. 1033 of 1987, the Tenant has spent the amount in paying the property tax and water tax without obtaining permission either from the Court or from the Landlord and thereby committed default in payment of rent. Referring to the irregular payments made, the Appellate Authority also held that the Tenant has committed wilful default and confirmed the order of eviction.
5. The Landlord / Tenant relationship, terms of tenancy and rent payable are all admitted. The Petitioner has become Tenant pursuant to Ex.P.6 - Lease Agreement dated 14.09.1982. The original rent was Rs. 375/-, which was enhanced to Rs. 400/-. As per Clause 2 of the Lease Agreement, rent shall be paid on or before Fifth of every succeeding month, without committing any default. There is no dispute that the present rent payable is Rs. 400/- per month.
6. Period of default is from October 1986 to May 1995 and the total arrears amount stated to be Rs. 42,000/-. Assailing the concurrent findings of the Courts below, learned Counsel for the Petitioner has submitted that the Rent Control Authorities have gone beyond the scope of enquiry and erred in finding wilful default merely on the ground of irregular payment of rent. Learned Counsel for the Petitioner has vehemently contended that the Courts below have not at all considered the actual default and not recorded any definite finding as to what is the default period and actual arrears of rent. It was further submitted that the Courts below erred in inferring wilful default and that the Tenant was irregular in making the payment even during the pendency of the Petition and the findings are unsustainable. It was urged that if really the Tenant has not paid the amount, nothing prevented the Landlord from filing the Petition under Section 11(4) of the Act. Learned Counsel further submitted that the Petitioner has been making payment and there is no supine indifference or inaction on the part of the Tenant to pay the rent. Learned Counsel for the Petitioner has placed reliance upon the decision reported in A.I.R. 1998 S.C. 1395.
7. Countering the arguments, learned Counsel for the Respondent / Landlord has drawn the attention of the Court to the various calculations and submitted that the very pattern of payment of amount would clearly show that the Tenant has unjustifiably accumulated the rent and committed Wilful default. Drawing the attention of the Court to Clause 2 of the Lease Agreement, learned Counsel for the Respondent has submitted that when the Petitioner has failed to pay the rent as per Clause 2 of the contract, it clearly amounts to wilful default and the Courts in proper appreciation of evidence has rightly ordered eviction.
8. According to the Respondent, the period of default is from October 1986 to May 1995 amounting to Rs. 42,000/-. The contention of the Petitioner is that he filed R.C.O.P. No. 1033 of 1987 and deposited a sum of Rs. 33,850/-. That apart, a sum of Rs. 2,912.80 has been paid by him towards the Property Tax (Ex.R.19 series) and a sum of Rs. 1,769.80 has been paid towards Water Tax (under Ex.R.21 series). Further, a sum of Rs. 3,067.40 was sent to the Respondent by four M.Os, which was acknowledged by the Respondent. The Petitioner has produced Ex.R.23 - Statement of Accounts and the total arrears payable from October 1986 to May 1995 for 104 months calculated at Rs. 41,600/- has been paid by him as stated above and there is no arrears of rent payable by him.
9. Let us consider first limb of payment of Rs. 33,850/- deposited in R.C.O.P. No. 1033 of 1987. As noted earlier, the Petitioner filed R.C.O.P. No. 1033 of 1987 under Section 8(5) of the Act for depositing the rent into the Court. An amount of Rs. 33,850/- was deposited as per Exs.R.12 to R.18 series. Even prior to filing of R.C.O.P. No. 1033 of 1987, dispute arose between the parties in respect of payment of rent. Stating that the Landlord has refused to receive the rent, the Petitioner filed R.C.O.P. No. 1033 of 1987 under Section 8(5) of the Act for depositing the rent into Court. The said R.C.O.P was allowed on 06.10.1988 and the Petitioner is duty bound to deposit the rent periodically into Court in R.C.O.P. No. 1033 of 1987. By the perusal of various deposits made, it is seen that the Petitioner has not deposited the rent regularly and periodically. Referring to Ex.R.30 - Statement of Accounts, the Courts below have concurrently held that the rent was allowed to be accrued for two to three months and only thereafter, the rent was deposited.
10. As per Clause 2 of the Lease Agreement, the rent shall be paid on or before 5th of every succeeding month without committing any default. But, the Petitioner has not complied with the terms of the Lease Agreement in depositing the rent within the stipulated period. In the decision reported in Sundararajan v. S.A. Viswanathan Chetty and Anr. 1997 (2) L.W. 567, S.S. SUBRAMANI, J. held that when there is a written agreement of tenancy, which says that every month's rent has to be paid on or before the 5th of the succeeding month, the tenant will be a defaulter if the rent was not tendered as per the Agreement of Tenancy.
11. It is the foremost duty of the Tenant to pay the rent in time. Especially when there is litigation between the parties, the Petitioner ought to have been vigilant in depositing the rent in time. Default in deposit of rent within the time has to be construed as wilful. Referring to number of decisions, in the decision reported in The Nilgiris Co-operative Marketing Society v. Uthandi 1998 (2) M.L.J 745, this Court has held as follows:
...It is no doubt true that in all those cases, it was held that if the tenant paid the rent, which was in arrears, immediately after the filing of the eviction petition at any time before the first hearing, it cannot be said that the tenant has committed a wilful default. I have perused the judgments very carefully. In all those cases, I find that the explanation offered by the Tenant for more paying the rent earlier was found satisfactory and in the context of that explanation and in the light of the payment of the arrears of rent as stated above, the Court held that there was no wilful default on the part of the tenant, on paying the rent immediately after the filing of the Rent Control Petition. I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment 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 in 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 in 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. In this case, I find that the explanation offered by the tenant is wholly unsatisfactory and it is an afterthought. This is the position of facts. Mere payment of rent by the tenant as stated above in this case would not absolve him of the disqualification which he had suffered already....
12. Even after the Petition is filed under Section 8(5) of the Act, it is the duty of the Tenant to see that the rent does not fall in arrears, in the decision reported in Vanitha v. Kuppusamy 1999 (III) M.L.J. 511, it was held thus:
...Section 10(2)(i) of the Act says that the rent will have to be paid as and when it becomes due, and the payment will have to be made within 15 days after the expiry of the time fixed in the agreement of tenancy, or, in the absence of such an agreement, by the last day of the month next following that for which the rent is payable. On a reading of Sections 8(5) and 10(2)(i) of the Act, even in case where a landlord refuses to receive rent remitted by money order, the obligation of the tenant to deposit the rent as and when it becomes due continues. Since it is the tenant who has moved the Court to exonerate himself from the penal consequences of default, it is his duty to see that the rent does not fall in arrears. Even this deposit cannot be said to be proper deposit in view of the statutory provision under Section 8(5) of the Act....
13. In the decision reported in Gopalsamy and Anr. v. R. Renganathan and Ors. 2000 (I) M.L.J. 703, it was held that even in cases where deposit is made under Section 8(5) of the Act, law stipulates that the rent will have to be deposited as and when it becomes due. Deposit in lump sum after invoking the provisions of Section 8(5) of the Act not proper.
14. The conduct of the Petitioner in not depositing the rent regularly, but made in lump sum amounts to wilful default. The contention that the Petitioner had difficulty in depositing the rent in the Court every month is of no avail. Deposit of rent in lump sum cannot absolve the Petitioner from the consequences of wilful default. This is all the more so when there was strain in the relationship of the Landlord and the Tenant and the arrears is for a period of 104 months calculated at Rs. 42,000/-. The Landlord has received Rs. 36,800/- without prejudice. The receipt of the amount by the Landlord would not absolve the Petitioner of the consequences of the default.
15. Let us consider the payments made towards Property Tax and Water Tax. Even while R.C.O.P. No. 1033 of 1987 was pending, the Petitioner has paid Rs. 2,912.80 towards property tax and paid Rs. 1,769.80 towards Water Tax (Exs.R.19 and R.22 series). When there was dispute between the Landlord and Tenant, the Petitioner is expected to deposit the rent in the Court. For making payment towards property tax and water tax, no permission was obtained either from the Court or from the Landlord. No intimation was given to the Respondent by the Tenant about the demand for taxes. The Respondent has not given any consent or permission to the Tenant to pay Property Tax and Water Tax and adjust the same from monthly rent or from the arrears of rent.
16. Ex.R.20 is the Rent Receipt dated 05.10.1984. Payment of tax made by the Petitioner has been entered by the Respondent as acceptance. Referring to Ex.R.20, the Appellate Authority has observed that the property tax and water tax due to the Corporation was paid by the Tenant only with the knowledge of the Landlord. The Appellate Authority has also made an observation that the Respondent as a Receiver has not taken sincere efforts for paying the Taxes to the Corporation and the Petitioner to avoid distress proceedings has paid the same with a view to adjust the same with the rental arrears. In Paragraph 13 of its order, the Appellate Authority has observed, "....When the court direction is specific for depositing rent into court without prior permission of the Court, the Appellate is not entitled to spend the rental amount for any other purpose...". Assailing the above findings of the Appellate Authority, learned Counsel for the Petitioner has contended that the Appellate Authority has taken two different views. It was submitted that while the Appellate Authority has made certain observations against the Respondent for not paying Property Tax and other taxes, the Appellate Authority was not justified in faulting the Petitioner in making payment towards property tax and water tax, which were paid to avoid distress proceedings.
17. The above contention has no force. The Appellate Authority has not taken any different view. Ex.R.20 - Rent Receipt is dated 05.10.1984 where the Respondent has accepted the payment of property tax by the Petitioner. It was in the year 1984 when the relationship of the Landlord and Tenant was cordial. Exs.R.19 and R.22 - Property Tax and Water Tax were paid after the dispute had arisen between the parties. When the Tenant was depositing the rent in R.C.O.P. No. 1033 of 1987, the Petitioner was not right in paying the amount towards property tax and water tax without prior permission of the Court. It cannot be said that there is perversity in the appreciation of evidence by the Appellate Authority. When there was strained relationship between the parties, payments made towards property tax and water tax cannot absolve the consequences of wilful default.
18. According to the Petitioner, he paid a sum of Rs. 3,067.40 by way of four M.Os and the same were received by the Respondent. As observed by the Courts below, when there is specific order for deposit of rent into the Court, the Petitioner was not entitled to send the rent to the Respondent by M.Os. Of course, the Respondent has accepted M.Os. Acceptance of M.Os by the Landlord cannot be taken as acquiescence contrary to the order of deposit into the Court. The payments made by M.Os would not absolve the Petitioner of the consequence of wilful default.
19. The Respondent issued Exs.P.1 and P.4 - Notices dated 09.12.1994 and 04.07.1995 calling upon the Petitioner to pay the arrears of rent and that arrears are due from 01.10.1986 onwards and if tendered will be accepted without prejudice. Only after notice, on 07.07.1995, the Tenant had sent M.O for Rs. 2,800/- which was adjusted for Seven months from October 1986 to April 1987. From the Statement of Accounts filed by the Landlord, it is seen that rent was sent only after due dates which only shows the conduct of the Tenant in not paying the rent as per the terms of tenancy agreement.
20. Learned Counsel for the Petitioner has relied upon the decision reported in A.I.R. 1998 S.C. 1395 and submitted that the Tenant having deposited the rent in R.C.O.P. No. 1033 of 1987 and made other payments, the Rent Control Authorities ought to have held that there was no wilful default. The said case arose under Andhra Pradesh Buildings (Lease and Rent Control) Act, which contains Section 11, as per which reasonable time has to be given to the Tenant to pay the amount. In the said case, even months before filing of the Eviction Petition, the Tenants have sent a telegram stating that the rents were paid, but receipts were not issued. Further, Bank Draft for the entire arrears was sent prior to the filing of the proceedings, which was already encashed by the Landlords. On facts and circumstances of the case and in view of Section 11 of Andhra Pradesh Buildings (Lease and Rent Control) Act, the Supreme Court has observed that the Proviso is attracted and there is no wilful default. The said decision is not applicable to the case in hand since the Petitioner neither paid arrears of rent on the first hearing nor did he admit that arrears were due.
21. The subsequent conduct of the Petitioner / Tenant is also to be noted. The wilful default committed by the Petitioner from 01.10.1986 to 31.05.1995 for 104 months amounts to Rs. 41,600/-. In or about 2001, R.W.1 has admitted that Rs. 4000/- rental arrears is due, which he did not pay or send it by M.O or made deposit in Court. On 17.04.2001, R.C.O.P. No. 1358 of 1995 was allowed and order of eviction was passed. In Appeal R.C.A. No. 436 of 2001, on 17.07.2001, the Petitioner has deposited Rs. 8,706/-. It is stated that as per Statement of Accounts filed in the Appellate Court on 12.09.2006, there is total arrears due for 121 months amounting to Rs. 48,478/- which is still not paid by the Petitioner. It is stated that so far the Respondent has not withdrawn the amount of Rs. 33,850/- lying in the court deposit in R.C.O.P. No. 1033 of 1987.
22. Learned Counsel for the Petitioner has contended that the Courts below were not right in inferring wilful default for the period during the pendency of the Application. This contention does not merit acceptance. The conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent conduct of the Tenant can be taken into consideration in deciding the matter. In the decision reported in Anraj Pipada v. Umayal 1998 (2) M.L.J. 524, S. JAGADEESAN, J. has held that when the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the Tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default.
23. In Vasantha Leela v. Vadivelu Chettiar , J. has held as follows:
...Therefore, it is clear from the above circumstances that the Tenant ought to have been diligent in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. The Tenant ought to have been careful and scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations that went on between the parties and default committed by the Tenant has to be construed as wilful default. The tenant was aware of the legal consequences of his omission to pay rent. Therefore, he ought to have been more careful. In spite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. Therefore, any default committed by the Tenant in this context can be nothing but wilful default within the meaning of the Act....
24. In the decision reported in South India Corporation Agencies Ltd., v. Chandrakanth C. Bandani 1998 (I) M.L.J. 685, this Court has held that unless there is a perversity in the matter of appreciation of evidence by the authorities below, the revisional court exercising jurisdiction under Section 25 of the Act will not interfere with the concurrent finding. There is absolutely nothing to show that there is perversity in the appreciation of evidence by the authorities below, while arriving at the concurrent findings in these matters. Therefore, this Court has no reason to interfere with the concurrent findings rendered by the Courts below.
25. In the result, the order dated 29.09.2006 passed in R.C.A. No. 436 of 2001 on the file of VII Small Causes Court, Chennai (arising out of R.C.O.P. No. 1358 of 1995 on the file of XV Court of Small Causes) is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. No. 1 of 2006 is dismissed.
26. Learned Counsel for the Petitioner / Tenant has requested time for vacating and handing over vacant possession to the Respondent / Landlord. In consideration of the submissions made onbehalf of the Tenant, two months time from the date of the order is granted for vacating and handing over delivery of possession.