Madras High Court
P.Thangadurai vs T.Ekambaram on 31 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.1852 of 2009 and M.P.No.1 of 2009 P.Thangadurai .. Petitioner vs. T.Ekambaram .. Respondent Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the judgment and decree passed in RCA No.2 of 2006 by the Subordinate Court, Tiruvallur on 04.06.2009 confirming the judgment and decree passed by the Rent Controller (District Munsif) Tiruvallur in RCOP No.12 of 2000 on 13.12.2005. For Petitioner : Mr.K.S.Kumar For respondent : Mr.S.D.N.Vimalanathan ORDER
Animadverting upon the judgment and decree dated 04.06.2009 passed in RCA No.2 of 2006 by the Subordinate Court, Tiruvallur, confirming the judgment and decree passed by the Rent Controller (District Munsif) Tiruvallur in RCOP No.12 of 2000 on 13.12.2005, this civil revision petition is focussed.
2. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this revision would run thus:
(i) The respondent/landlord filed the RCOP on the grounds of (i) Wilful default, and (ii)Demolition and reconstruction invoking Section 10 (2) (i) and Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
(ii) The matter was resisted by filing counter by the tenant.
(iii) During enquiry, the landlord/Ekambaram examined himself and P.W.1 along with P.Ws.2 and 3 and Exs.P1 to P3 were marked. The tenant/Thangadurai examined himself as D.W.1 along with D.W.2 and Exs.R1 to R12 were marked. Exs.C1 and C2 were marked as Court documents.
(iv) Ultimately the Rent Controller ordered eviction on the ground of wilful default only, as against which the tenant preferred RCA, for nothing but to be dismissed by the appellate authority confirming the order of eviction passed by the Rent Controller.
3. Challenging and impugning the orders of both the Courts below, this revision has been focussed on various grounds.
4. The learned counsel for the revision petitioner, would submit that the landlord in fact refused to receive the rent sent by Money Order by the tenant, whereupon the tenant was constrained to open a separate savings account in the post office and deposit the rent for about 21 months and ultimately before the Rent Controller, the said amount was deposited after withdrawing it from his savings account and that shows the bona fide attitude of the tenant in not committing any wilful default. However, both the Courts below failed to take note of the said fact.
5. In a bid to extirpate and torpedo the arguments as put forth on the side of the tenant, the learned counsel for the landlord, would pilot her argument, which could pithily and precisely be set out thus:
(a) The tenant is expected to comply with Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act. But in this case, admittedly the tenant has not complied with the same and the conduct of the tenant in not adhering to Section 8 of the said Act, would attract the definition of wilful default in paying rent and both the Courts below correctly held that there was default.
(b) Over and above that, the memo of calculation filed by the tenant himself before the Rent Controller which is extracted hereunder, would run thus:
"MEMO OF CALCULATION FILED BY THE RESPONDENT
1. 14.10.1999 .. Rs. 5,000.00
2. 07.07.2003 I.A.No.61/01 Rs.26,800.00
3. 13.08.2003 (June, July-03) Rs. 1,200.00
4. 18.09.2003 (August 2003) Rs. 600.00
5. 08.10.2003 (September 2003) Rs. 600.00
6. 10.11.2003 (October 2003) Rs. 600.00
7. 11.03.2004 (Nov-Dec-2003 & Jan-2004) Rs. 1,800.00
8. 08.06.2004 (Feb-Mar-April-04) Rs. 1,800.00
9. 07.09.2004 (May to Aug-2004) B.No.251 Rs. 2,400.00
10. 01.10.2004 (September 2004) B.No.254 Rs. 600.00
11. 13.12.2004 (Oct, Nov-2004) Rs. 1,200.00
12. 14.02.2005 (Dec-04, Jan-04) Rs. 1,200.00
13. 22.03.2005 (February-2005) Rs. 600.00
14. 14.06.2005 (Mar, April-2005) B.No.261 Rs. 1,200.00
15. 15.07.2005 (May, June-2005) B.No.262 Rs. 1,200.00
16. 12.09.2005 (July, Aug-2005) B.No.263 Rs. 1,200.00
17. 05.10.2005 (September 2005) -- Rs. 600.00
18. 07.11.2005 (October 2005) -- Rs. 600.00
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TOTAL Rs.49,200.00
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From January 1999 To October 2005 - TOTAL MONTHS - 82 TOTAL AMOUNT PAID IS Rs.600 X 82 = Rs.49,200.00 The learned counsel for the respondent placing reliance on the memo of calculation would point out that that itself is indicative of the fact that he was not regular in paying the arrears.
Accordingly, she would pray for the dismissal of the RCOP.
6. The points for consideration are as to:
(1) Whether both the Courts below were justified in holding from the available evidence that there was wilful default in paying rent?
(2) Whether there is any perversity or illegality in the orders passed by the Courts below?
7. At the outset I would like to recollect and call up the following decisions of the Hon'ble Apex Court:
(i) (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS.
8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained the disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find the conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter.
9. In S.Sundaram Pillai v. V.r.Pattabiraman this Court had occasion to consider the word 'wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26) 21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
22. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p.268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:
'wilful' intentional; not incidental or involuntary;
- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
p.296 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:
governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.
24.The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus:
to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
25. In Black's Law Dictionary (Fourth edn.) at p.1773 the word 'wilful' has been defined thus:
'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.
The word 'reckless as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'
26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
(ii) 2002(4) CTC 572-E.PALANISAMY V. PALANISAMY (D) BY Lrs.AND OTHERS, certain excerpts from it would run thus:
4.It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a Bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specify the name of the Bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a Bank inspite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.
5. Mr.Sampath, the learned counsel for the appellant argued that since the appellant-tenant had deposited the arrears of rent in Court, it should be taken as compliance of Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the Court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The tenant legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance of the procedure is necessary. The tenant cannot straight away jump to the last step i.e. To deposit rent in Court. The last step can come only after the earlier steps have been by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal & Another, 1996(1) SCC 243 and M.Bhaskar v. J.Venkatarama Naidu, 1996(6) SCC 228.
8. A plain running of the eye over those decisions, would exemplify and demonstrate that a tenant is not expected to take shelter by pleading that the landlord failed to receive rent and that was why he could not pay the rent in time etc. The tenant is expected to strictly adhere to the mandates envisaged under Section 8 of the Act. Here admittedly, the tenant for 21 months did not resort to Section 8 of the Act and only after filing of the RCOP by the landlord, he deposited the amount and that too, after filing of the application under Section 11 of the Act. As such, those factors propelled and impelled the Rent Controller to pass such an order, which was confirmed by the appellate authority, warranting no interference in the revision.
9. The memo filed by the tenant also would speak to the effect that the monthly rent of Rs.600/- was not paid every month, even after filing of RCOP during the year 2000. As such I could see no perversity or illegality in the order passed by the Courts below.
Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
10. On hearing the order, the learned counsel for the tenant would make an extempore submission that atleast 18 months' time could be granted for the tenant to seek alternate accommodation and vacate the premises, for which the learned counsel for the landlord would oppose by stating that six month's time could be granted for vacating. By way of striking a balance between the two, I am inclined to grant a years' time for vacating the premises and hand over possession to the landlord, subject to payment of arrears of rent, if any, and also future rents without any default. An affidavit shall be filed to that effect, within a period of fifteen days from this date.
31.07.2012
Index : Yes
Internet : Yes
To
1. The Subordinate Judge, Tiruvallur.
2. The District Munsif, Tiruvallur .
G.RAJASURIA, J., gms
C.R.P.(NPD).No.1852 of 2009
31.07.2012