Madras High Court
D.B. Kingsley vs Shoba Viswanathan on 10 November, 2000
Equivalent citations: (2001)1MLJ59
ORDER P. Thangavel, J.
1. C.R.P. No. 2848 of 2000 has been filed by the tenant, against the judgment dated 6.6.2000, and made in R.C.A. No. 899 of 1993, on the file of the VIII Judge, Court of Small Causes, Madras, confirming the order and decretal order dated 30.6.1993 and made in R.C.O.P. No. 2788 of 1990 on the file of the XII Judge, Court of Small Causes, Madras ordering eviction, on the ground of wilful default. C.R.P. Nos. 2840, 2849 and 2850 of 2000 have been filed by the tenant against the common order, dated 6.6.2000, passed by the VIII Judge, Court of Small Causes, Madras, dismissing M.P. Nos. 131, 130 and 69 of 1999, in R.C.A. No. 899 of 1993, filed for receipt of additional grounds, additional documents and additional evidence, respectively.
2. With the consent of both sides, these civil revision petitions are taken up for the final disposal.
3. The respondent herein, who is the petitioner before the Rent Controller, is the owner of the property described in the rent control petition and the said property was leased out by her for residential purposes on a monthly rent of Rs. 1,500 to one M/s. Needle Industries India Ltd., in which the revision petitioner herein, who is the respondent before the Rent Controller, was an employee. The said M/s. Needle Industries India Ltd., surrendered possession of the said property to the respondent herein by the end of the August, 1981 and the revision petitioner herein, who was already in possession of the said property, independently became tenant of the said premises, under the respondent herein on a monthly rent of Rs. 1, 500. The revision petitioner has paid rent for the months of September, October and November, 1981 and defaulted to pay rent thereafter. The respondent herein, as plaintiff, filed a suit in O.S. No. 1765 of 1981, on the file of the City Civil Court, Madras, for ejectment against the revision petitioner herein, as defendant. Subsequent to the filing of the said suit, the revision petitioner herein, as plaintiff, filed a suit in C.S. No. 239 of 1982 on the file of the High Court of Judicature, Madras, for the relief of specific performance of contract, based on an alleged oral agreement for sale, and the said suit is pending. The ejectment suit filed by the respondent herein, as plaintiff, in O.S. No. 1765 of 1981, on the file of the City Civil Court, Madras, was transferred to the file of the High Court of Judicature, Madras, for being tried along with the suit in C.S. No. 239 of 1982, referred to above, but the same had not been traced and numbered in the High Court. The exemption granted in the Tenancy Act, for tenancies of residential buildings over Rs. 400 was struck down by the Supreme Court and, therefore, the suit for ejectment filed by the respondent herein had to be withdrawn as having become infructuous. The revision petitioner herein has committed default in payment of rent, claiming himself to be the owner of the demised property, from 1.12.1981, even though he is not the owner of the said property. The revision petitioner has failed to pay rent for a period of 105 months from December, 1981 to August, 1990 and the non-payment of rent is wilful. Hence, the respondent herein, as petitioner, filed the rent control petition for eviction of the revision petitioner from the demised premises.
4. The revision petitioner, as respondent before the Rent Control Court, resisted the claim made by the respondent herein on the following grounds: The revision petitioner has become the tenant of the premises described in the petition, on a monthly rent of Rs. 1,500 and had paid rent upto November, 1981. The respondent herein had agreed to sell and execute a sale deed with regard to the property described in the petition, for a sum of Rs. 3,40,000, in the month of December, 1981 and, therefore, the revision petitioner is deemed to have become the owner of the said property from December, 1981. The respondent herein, who is residing in the United States of America, has failed to execute the sale deed as agreed and, therefore, the revision petitioner filed a suit in C.S. No. 239 of 1982 on the file of the High Court of Judicature, Madras, for the relief of specific performance of the contract for sale of the said premises and for the relief of declaration that the revision petitioner is deemed to be the owner of the premises with effect from December, 1981. Therefore, the petition filed by the respondent herein as petitioner, for the eviction of the revision petitioner herein is not maintainable. The respondent herein has also withdrawn the suit filed for ejectment in O.S. No. 1765 of 1981 and had not initiated any further proceedings for long period. No demand was also made for rent as the revision petitioner was deemed to be the owner of the suit property. Unless and until the claim made by the revision petitioner that he is the deemed owner of the property is settled by the High Court of Judicature, Madras, the Rent Control Court can have no jurisdiction to go into that question. The revision petitioner was always ready and willing to tender the sale consideration of Rs. 3.40,000 in December, 1981 itself. Under the said circumstances, the revision petitioner, as respondent, sought for dismissal of the petition filed for eviction, on the ground of wilful default, by the respondent herein.
5. After considering the material evidence placed before court, the learned Rent Controller has come to the conclusion that the revision petitioner herein, as tenant, has committed wilful default in payment of rent for the period from 1.12.1981 to 31.8.1990 and, therefore, ordered eviction of the revision petitioner from the demised premises by order dated 30.6.1993 in R.C.O.P. No. 2788 of 1990. Aggrieved at the said order and decretal order passed by the Rent Controller, the revision petitioner herein tenant, as appellant, filed an appeal in R.C.A. No. 899 of 1993, on the file of the VIII Judge, Court of Small Causes, Madras. During the pendency of the said rent control appeal before the appellate authority, the revision petitioner/tenant filed M.P. Nos. 69, 130 and 131 of 1999, for receipt of additional evidence, additional documents and additional memorandum of grounds, respectively, and the appeal as well as those miscellaneous petitions were considered together by the learned appellate authority. After considering the submissions made on both sides and in the light of the evidence available or record, the learned appellate authority, while dismissing the miscellaneous petitions filed for the purposes referred to above, confirmed the order and decretal order of the learned Rent Controller in R.C.O.P. No. 2788 of 1990. Aggrieved at the said judgment and common order, dated 6.6.2000 in R.C.A. No. 899 of 1993, M.P. Nos. 69, 130 and 131 of 1999, the tenant/appellant, as revision petitioner, has come forward with these civil revision petitions.
6. Admittedly, the landlady, who is the respondent herein, is the owner of the property described in the rent control petition and the revision petitioner, who was the respondent before the rent control court had become the tenant of the said premises on a monthly rent of Rs. 1,500 with effect from 1.9.1981 after surrender of the said premises by M/s. Needle Industries India Ltd., in which the revision petitioner herein was an employee. It is also an admitted fact that the revision petitioner herein has paid rent to his landlady, the respondent herein, for the period from September, 1981 to November, 1981 and, thereafter, had not paid the rent with effect from 1.12.1981. The reason given by the revision petitioner for non-payment of the rent till filing of the rent control petition in the month of October, 1990 and thereafter was that there was an oral agreement for sale with regard to the demised property between the respondent herein and the revision petitioner for a sum of Rs. 3,40,000 with effect from 1.12.1981 and that, therefore, he is not liable to pay rent to the respondent herein as he was deemed to be the owner of the said premises with effect from 1.12.1981. The revision petitioner has denied not only the alleged oral agreement pleaded by the revision petitioner herein but also the claim of the revision petitioner that he is the deemed owner of the demised property with effect from 1.12.1981. It is under the said circumstances, admittedly, the respondent herein, as plaintiff, had filed a suit for ejectment in O.S. No. 1765 of 1981, on the file of the City Civil Court, Madras, against the revision petitioner, as defendant, and during the pendency of the said suit, the revision petitioner herein, as plaintiff, has filed the suit in C.S. No. 239 of 1982, on the file of the High Court of Judicature, Madras, against the respondent herein, as defendant, for the relief of specific performance of the agreement for sale for Rs. 3,40,000 and also for the relief of declaration that he is the deemed owner of the said premises from December, 1981. Neither the respondent herein nor the revision petitioner could give any details with regard to the suit filed in O.S. No. 1765 of 1981 on the file of the City Civil Court, Madras, except to the extent that the abovesaid Suit was ordered to be transferred from the City Civil Court, Madras for being tried along with C.S. No. 239 of 1982 and the said suit was not pursued further because of the decision of the Apex Court, striking down the exemption granted in the Tenancy Act for tenancies of residential buildings over Rs. 400 per month.
7. In view of the said position, this Court called for particulars with regard to the suits filed by the respondent herein against the revision petitioner, in connection with the demised property. A report was submitted to the effect that the revision petitioner herein, as petitioner/plaintiff filed Application No. 2954 of 1984, on 18.3.1982, in C.S. No. 239 of 1982, on the file of the High Court of Judicature, Madras, for withdrawal of the suit in O.S. No. 1765 of 1982 from the file of the VIII Assistant Judge, City Civil Court, Madras and to try the same jointly with C.S. No. 239 of 1982 and the same was ordered on 25.9.1986. The abovesaid suit was withdrawn from the City Civil Court, Madras and renumbered as Tr.C.S. No. 625 of 1986 on the file of the High Court of Judicature, Madras. The said suit has been filed for ejectment of the revision petitioner from the demised premises, by the respondent herein. It is also seen from the report submitted by the Registry that the respondent herein, as plaintiff, has also filed a suit against the revision petitioner, as defendant, in O.S. No. 9532 of 1984 on 14.12.1984, for recovery of a sum of Rs. 88,000 and future mesne profits at the rate of Rs. 2,500 per month, with effect from 1.11.1984, till he vacates and delivers vacant possession of the demised property. An application in A. No. 249 of 1986 was again filed in C.S. No. 239 of 1982 by the revision petitioner herein and the same was also ordered to be tried jointly with C.S. No. 239 of 1982, by order dated 25.9.1986. The suit in O.S. No. 9532 of 1984 on the file of the City Civil Court, Madras was with drawn to the file of the High Court of Judicature, Madras and renumbered as Tr.C.S. No. 623 of 1986 on the file of the High Court, Madras. Even though the abovesaid two suits were ordered to be tried jointly with C.S. No. 239 of 1982, the suit in C.S. No. 239 of 1982 alone was taken up by a learned single Judge of this Court and decreed for the relief of specific performance of contract of sale in that suit and dismissed with regard to the relief of declaration that the plaintiff is the owner of the house and premises described in the rent control petition as preposterous. It has also been directed in the abovesaid judgment dated 8.9.1992 in C.S. No. 239 of 1982 that the revision petitioner/plaintiff, if continues to be in possession of the demised property, will have to pay either rent or damages for use and occupation of the demised premises to the defendant/respondent herein, till his possession becomes that of the owner of the property. It is under the said circumstances, the suit in O.S. No. 1765 of 1982, which was transferred from the City Civil Court, Madras, to the file of this Court and renumbered as Tr.C.S. No. 625 of 1986 was retransferred by this Registry to the City Civil Court, Madras and renumbered as O.S. No. 3621 of 1996 on the file of the City Civil Court, Madras. Again it was retransferred from the City Civil Court, Madras to this High Court and renumbered as Tr.C.S. No. 625 of 1986 and the same is still pending on the file of this Court. The suit in O.S. No. 9532 of 1984, withdrawn from the City Civil Court, Madras and renumbered as Tr.C.S. No. 623 of 1986, on the file of the High Court, Madras is still pending before the High Court, as seen from the report received from the Registry.
8. Admittedly, the respondent herein, as appellant, preferred an appeal in O.S.A. No. 107 of 1993 against the judgment and decree, dated 8.9.1992 and made in C.S. No. 239 of 1982, on the file of the High Court, Madras before a Division Bench of this Court, as seen from the case reported in Mrs. Shoba Viswanathan v. D.P. Kingley . The Division Bench, consisting of their Lordships Justice M. Srinivasan (as he then was) and Justice S.S. Subramani, after considering the submissions made by both sides and in the light of the documentary evidence placed before court, has held that the specific performance of contract was not in conformity with certain statutory requirements: that the owner of the property, residing outside India, had requested the tenant, who wanted to purchase the property, to get Valuation Report about the property: that the tenant had acted as an agent of the owner: that the relationship between the tenant and the owner is confidential relationship, that the owner of the property subsequently came to know that the Valuation Report furnished by the tenant did not reflect correct value: that there was no consensus ad idem between the parties: that there is no binding and enforceable contract existing between the landlord and the tenant: that the tenant, as plaintiff: had not come to court with clean hands and that, therefore, the relief of specific performance cannot be granted because of the exploitation of confidential relationship existed between the tenant and the owner, by the tenant. Accordingly, the Hon'ble Judges of the Division Bench had refused to grant the relief of specific performance, thereby setting aside the judgment and decree passed by the learned single Judge of this Court. It is admitted by both parties that the revision petitioner has questioned the judgment and decree passed by the abovesaid Division Bench of this High Court in O.S.A. No. 107 of 1993, in S.L.P.(Civil) No. 15024 of 1996, before the Hon'ble Supreme Court of India and the same was dismissed on 26.4.1996, confirming the judgment and decree passed by the Division Bench of this Court in O.S.A. No. 107 of 1993. It is evident from the admitted case of both parties and from the judgment in C.S. No. 239 of 1982, which was marked as Ex.R-1 before the Rent Controller and also from the subsequent proceedings referred to above that the claim made by the revision petitioner that there is a oral agreement for sale with regard to the property described in the rent control petition: that he is entitled to specific performance of contract and that he is the deemed owner of the demised property with effect from 1.12.1981 had fallen to the ground because of the decisions referred to above and he cannot claim any relationship, except the relationship of landlord and tenant between himself and the respondent herein in respect of the demised property. Therefore, the revision petitioner is bound to pay the rent as agreed at the time of entering into tenancy in the month of September, 1981 with the respondent herein, for the demised property.
9. Admittedly, the revision petitioner has not paid the rent even after the disposal of the suit in C.S. No. 329 of 1982, wherein a specific direction was given by the learned single Judge of this Court that the revision petitioner is no longer the owner of the demised property, even if he is entitled to the relief of specific performance and that he should pay either rent or damages for use and occupation of the said premises if he is in possession at that relevant point of time. The revision petitioner has not chosen to comply with the direction to pay rent or damages as directed by the learned single Judge in C.S. No. 239 of 1982, even though he had complied with the direction to deposit the sale consideration of Rs. 3,40,000, within one month from 8.9.1992, when the judgment was delivered. The fact remains that the revision petitioner herein had filed a petition in M.P. No. 104 of 1997 for production of original Power of Attorney given by the respondent herein and another M.P. No. 522 of 1997 for deposit of the original Power of Attorney with the Registrar of the High Court, Madras for the Purpose of reinvestigation, in R.C.A. No. 899 of 1993 pending on the file of the Rent Control Appellate Authority, against the order and decretal order in R.C.O.P. No. 2788 of 1990 on the file of the Court of Small Causes, Madras. Both these petitions were dismissed by the Rent Control Appellate Authority and C.R.P. Nos. 62 of 1998 and 674 of 1998 were filed against the orders passed in M.P. No. 104 of 1997 and M.P. No. 522 of 1997, respectively, on the file of the High Court, Madras. During the pendency of the abovesaid civil revision petitions, the respondent herein had produced the original Power of Attorney together with the photo copy for the inspection of the revision petitioner herein, and, therefore, both the civil revision petitions were disposed of by the High Court, but with a direction to the revision petitioner, as tenant, to deposit a sum of Rs. 2,36,609.25 into the SB.A/c. No. 12659, Vijaya Bank, Egmore, Madras, standing in the name of the respondent herein, within one month from that day, towards arrears of rent upto that day and continue to deposit future rent before 5th of every month in the same account. It was also directed in the abovesaid civil revision petitions that the petition filed under Section 11(4) of the Act by the respondent herein against the revision petitioner in the abovesaid rent control appeal, shall be withdrawn on deposit of the abovesaid arrears of rent. The abovesaid order has been accepted by the revision petitioner and, admittedly, he had deposited the admitted arrears of rent even on 3.4.1988, the date of passing of the common order in C.R.P. Nos. 62 of 1998 and 674 of 1998 on the file of the High Court, Madras. The order passed by a single Judge of this Court during the pendency of the rent control appeal would also go to show that the High Court of Judicature had declared that the relationship of the landlord and the tenant continues between the revision petitioner and the respondent with regard to the demised property and accepting such declaration, the revision petitioner has deposited the arrears of rent as directed by the High Court in the account of the respondent herein and continued to deposit the rent to the account of the respondent herein till this date. It will go to show that the revision petitioner has admitted the relationship of the landlord and the tenant in respect of the demised premises between him and the respondent herein. That apart, the above said common order would further disclose that the revision petitioner has chosen to deposit the arrears of the rent as per the direction of the High Court of Judicature, Madras in the above said civil revision petitions only on 3.4.1998 even though there was a direction by a learned single Judge of this Court in C.S. No. 239 of 1982, dated 8.9,1992, to deposit the rent or damages till he continues to be in possession of the demised property. It will clearly go to show, as rightly pointed out by the learned Counsel for the respondent herein, that this revision petitioner has not complied with the direction of the High Court of Judicature, Madras in the year 1992 to pay arrears of rent for the period from 1.12.1981 till 8.9.1992 and even thereafter, till 3.4.1998.
10. The learned Counsel for the respondent herein brought to the notice of this Court the decision reported in Vasavambal v. Chenniappa Gounder (1980)1 M.L.J. 207, wherein a learned single Judge of this Court has held as follows:
...It must also be pointed out that the explanation is not exhaustive of all cases of wilful default and it is unnecessary for a landlord to issue a notice to the tenant giving him two months clear time before eviction can be sought on the ground of wilful default. The omission, therefore, of the petitioner to issue two months notice will not render what is otherwise clearly wilful, any the less such wilful default.
11. In S. Duraiswami Nadar v. Nagammal , a learned single Judge of this Court has held as follows:
...In this case, there is no evidence that the parties agreed that the relationship of landlord 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 does 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....Even assuming that the petitioner is entitled to the benefit of Section 53-A his liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms.
12. In R. Ranganayaki Ammal v. Namagiri Venkataraman (1994)2 M.L.J. 203 : 1994 T.N.L.J. 20, it has been held by a learned single Judge of this Court that setting up of an agreement of sale and doctrine of part performance by the tenant cannot be held to take away the relationship of landlord and tenant between the owner of the premises and tenant merely on the retention of possession without something independent of the abovesaid claim. If there is no independent and sufficient evidence for the ceasing of the relationship of landlord and tenant, it has to be held that there is wilful default by the tenant, if payment has not been made wilfully.
13. In C. Thangaswamy Nadar v. Pappa (1988)2 L.W. 223, Hon'ble Justice M.N. Chandurkar, Chief Justice of this High Court (as he then was), has held that default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge and legal consequences flowing therefrom. The burden to show that the default is not intentional or deliberate is on the tenant, it has also been held that if there was a continuous default, which is unexplained, the court will be well justified in coming to the conclusion that the default is wilful and deliberate.
14. In Deluxe Road Lines v. Palani Chetty , M. Srinivasan, J., (as he then was) has held as follows:
...The obligation to pay rent is not merely contractual but also statutory....A reading of the main section and proviso makes it clear that it is for the tenant to prove that his default is not wilful. It is only the tenant who knows the relevant facts and he should plead the same and prove them before the controller in order to satisfy the controller that the default was not wilful. If the tenant is not able to satisfy the controller that there were circumstances which prevented him from carrying out his contractual or statutory obligation of having paid the rent, then necessary consequential inference is that the default is wilful. No doubt, the explanation introduced by the amending Act of 1973 is to the effect that a default should be construed as wilful if the tenant fails to pay even after issue of two months notice by the landlord claiming the rent. But; it is not necessary in every case that a notice should have been issued by the landlord to the tenant in order to hold that the default is wilful. Even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful.
15. The cases cited above would lead to hold that the revision petitioner has failed to comply with the statutory obligation in the payment of rent to the respondent herein, by setting up a oral agreement for sale, which was ultimately found to be unenforceable by all the courts, upto the Hon'ble Supreme Court, and such non-payment of rent is intentional, deliberate, calculated, conscious and with full knowledge of legal consequences flowing therefrom. The fact of non-issuance of two months notice by the respondent herein to the revision petitioner cannot also help the revision petitioner to claim that he has not committed wilful default in the payment of rent.
16. The learned Counsel for the revision petitioner has brought to the notice of this Court the decision reported in Sundarampillai v. R. Pattabiraman ________ and Kousalya Devi v. Lakshminarayana Charya . In that case, the Apex Court has held as follows:
Another view, which in our opinion, is a more acceptable one and flows from the actual words used by the provision is that where the explanation does not apply in the sense that the landlord has not issued two months notice, it will be for the court to determine in each case whether the default is wilful having regard to the tests laid down by us and if the court finds that the default is wilful then a decree for eviction can be passed without any difficulty....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.
The decision relied on by the learned Counsel for the revision petitioner will be helpful more to the respondent herein than to the revision petitioner, if the facts and circumstances of the case are taken into consideration.
17. In Chordia Automobiles v. S. Moosa , it has been held that wilful default means, act done consciously or deliberately done with open defiance and intent not to pay rent. The said decision has been followed by this Court in M.M. Iliyas v. M.R. Pakkirisamy . These decisions would speak as to what is wilful default and if the definition of "wilful default" is taken into consideration in the light of the facts and circumstances of this case, these decisions will not also help the revision petitioner to establish that he has not committed wilful default in the payment of rent.
18. The learned Counsel for the revision petitioner also brought to the notice of this Court the decision reported in Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehara Rao . In that case, the tenant had not paid rent to the landlord under the bona fide belief that he was entitled to purchase the property under a prior oral agreement, pursuant to which he had already paid earnest money. Though the suit filed for specific performance, on the basis of the oral agreement was dismissed, the appeal was pending. The non-payment of rent during the said period and circumstances was, therefore, held to be not wilful, in that case.
19. In A. Raja v. Ingnasi , there was an agreement of sale between the landlord and the tenant and 50 per cent of the sale consideration had been paid by the tenant to the landlord already. There is no recital in the sale agreement to pay rent by the tenant to the landlord. That apart, the admitted rent which was in arrears had been deposited by the tenant in court immediately after filing of application for eviction by the landlord. It is under the said circumstances, a learned single Judge of this Court has held that non-payment of rent till the deposit of arrears of rent immediately after filing the application for eviction is not intentional or wilful.
20. In R. Kanthimathi v. Mrs. Beatrice Xavier (2000)2 L. W. 805, the question that arose for consideration was whether the relationship of landlord and tenant ceases and fresh rights and obligations flow under an agreement of sale, when substantial portion of sale consideration was received by the landlord. In that case, it was held by the Apex Court that reassertion of possession in the agreement of sale denotes that possession was given in pursuance of agreement of sale and, on acceptance of such change, the relationship of landlord and tenant ceases. It was also held that when the appellant is no more a tenant, he cannot be said to have committed wilful default.
21. In Imambi v. Azeeza Bee (2000)2 L. W. 808, the Apex Court, while dealing with the question as to whether the status of the tenant would continue to be so even after an agreement of sale is executed by the tenant with the landlord, in respect of the same tenanted premises, has held that when a sale deed is executed with regard to the half share of the property, such tenant becomes co-owner with the landlord and that the status of such tenant, after execution of agreement, ceases to be such and it is changed to that of a purchaser.
22. The decisions cited above by the learned Counsel for the revision petitioner will not apply to the facts and circumstances of this case, since, it has been categorically held by the Courts, upto the Apex Court, that there is no agreement of sale, which can be enforced by the revision petitioner, against the respondent herein, with regard to the demised property. It is also evident from the perusal of Ex.R-1 that the revision petitioner, who claims that there was a oral agreement of sale, has not even pleaded that he has paid any money by way of advance in connection with the alleged oral agreement pleaded by him. There is also no acceptable evidence on the side of the revision petitioner that he was put in possession of the said property, in part performance of the alleged oral agreement. Therefore, the decisions cited above will not help the revision petitioner in any respect to hold that the non-payment of rent was only under the bona fide belief of existence of an agreement of sale with regard to the demised property between the revision petitioner and the respondent herein.
23. The learned Counsel for the revision petitioner contends that he had deposited sale consideration of Rs. 3,40,000 in court deposit, in C.S. No. 239 of 1982, which was more than the arrears of rent due to the respondent herein from the revision petitioner and that the arrears of rent might have been adjusted from and out of the sale consideration so deposited by the revision petitioner and that, therefore, it cannot be held that the revision petitioner has committed wilful default, deliberately, in the payment of rent.
24. The learned Counsel Thiru V.S. Subramaniam, appearing for the respondent, contends that the said amount was deposited only towards sale consideration and not as advance or towards arrears of rent: that the revision petitioner has not informed the court or the respondent herein to take the arrears of rent from and out of the sale consideration so deposited by him as per the order of the court and that, therefore, the deposit of the abovesaid sale consideration by the revision petitioner will not in any way help him to escape from the commission of wilful default in payment of rent for the period from 1.12.1981 to 31.8.1990 and also for the subsequent period upto 3.4.1998, when the arrears of rent was deposited by the revision petitioner as per the second direction of the High Court of Judicature, Madras, as mentioned above. The learned Counsel for the respondent has also brought to the notice of this Court the fact about the non-payment of arrears of rent as per the first direction given by the learned single Judge of this Court in C.S. No. 239 of 1982. The learned Counsel also brought to the notice of this Court the assertion made by the revision petitioner in his additional counter filed in R.C.O.P. No. 2788 of 1990, wherein he has stated that since he is deemed to be the owner of the demised property the question of payment of rent does not arise: that he undertakes to pay the rent to the respondent herein, provided the respondent herein executes the sale deed within the time prescribed by the High Court. It is relevant to point out that the abovesaid additional counter, with such averments, has been filed by the revision petitioner, after the direction given by the learned single Judge of this Court to pay rent, in the judgment and decree dated 8.9.1992. The attitude of the revision petitioner would clearly go to show that he has got no respect even for the direction of the High Court to pay the arrears of rent due from him to the respondent herein.
25. The learned Counsel for the revision petitioner has brought to the notice of this Court the decision reported in K. Narasimha Rao v. T.M. Nasimuddin Ahmed , wherein the Apex Court was pleased to hold that payment of excess amount in advance more than the amount due being legal, the landlord, having failed to refund the same to the tenant, is bound to adjust it towards the amount due from the tenant and that if the excess advance amount is adjusted and there is no arrears of rent, then it will not amount to wilful default.
26. In Kranti Swaroop Machine Tools (P) Ltd. v. Kanta Bai Asawa(Smt.) , the tenant had to pay Municipal Tax as per the terms of the rent deed, apart from making a deposit of Rs. 10,000 with the landlady, which would not carry any interest but would be adjusted, at the termination of the tenancy, towards the rent, light bills and damages, which may be found due. The tenant had committed default in payment of Municipal Tax. In these circumstances, it was held by the Apex Court that while the landlady had taken the deposit of Rs. 10,000 the arrears of Municipal Tax ought to have been adjusted from the deposit money even if there was no request for such adjustment from the tenant and therefore the tenant could not be evicted on the ground of wilful default.
27. In Girijanandan Singh Parashram v. New Cotton Ginning and Pressing Company , the tenant, though bound to pay rent every month, used to pay rent after two months or even after three to six months right from the inception of tenancy. Eviction proceeding was initiated against the tenant on the ground that he was a habitual defaulter. The tenant had taken a stand that a practice had developed between the parties to make payment of rent as and when demanded on behalf of the landlord. The Apex Court accepted the stand taken by the tenant and held that the tenant cannot be held to be a habitual defaulter, merely because he used to pay rent once in two to three months or four months.
28. The decision reported in Mangalbhai v. Dr. Radhyshyam (1992)3 S.C. 448, also deals with the case of the landlord that the tenant is a habitual defaulter. In that case, the landlord used to collect rent in lump sum and used to pass on receipt thereafter instead of collecting the rent every month and that practice continued for number of years. In that case it was held by the Apex Court that eviction cannot be ordered treating the tenant as habitual defaulter by giving a few days notice by the landlord.
29. In Mahendra Raghunathdas Gupta v. Viskwanath Bhikaji Mogul , the Apex Court has held that tendering of rent by the tenant to the advocate for the landlord, even after the issue of notice to pay the rent to the landlord, by means of a cheque, is a valid tender. All these decisions cited by the learned Counsel for the revision petitioner and referred to above will have no application to the facts and circumstances of this case.
30. The learned Counsel for the revision petitioner contends that the respondent herein has terminated the tenancy and filed the suit in O.S. No. 1765 of 1982 for ejectment of the revision petitioner from the demised premises and O.S. No. 9532 of 1984 for arrears of rent, damages and for mesne profits, on the file of the City Civil Court, Madras, that there is no jural relationship of landlord and tenant between the revision petitioner and the respondent herein and that, therefore, the respondent herein has no right to approach the rent control court to evict the revision petitioner from the demised premises.
The fact remains that exemption was granted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for tenancies of residential buildings over monthly rent of Rs. 400. It was under the said circumstances that the suit for ejectment in O.S. No. 1765 of 1982 was filed on the file of the City Civil Court, Madras, which was subsquently ordered to be transferred to the High Court of Judicature, Madras for being tried along with O.S. No. 239 of 1982 on the file of the High Court, Madras. It is the admitted case of both sides that the exemption granted bases on quantum of monthly rent for residential buildings under Section 30(ii) of the Tenancy Act was struck down by the Apex Court in Rattan Arya v. State of Tamil Nadu . It is also an admitted fact that the decree already obtained and to be obtained after striking down of the abovesaid provision by the Apex Court will be of no use and it cannot be executed against the defendant, who is the tenant. Therefore, pursuing the suit or keeping the suit pending will be of no use so far as the respondent herein is concerned. Hence, filing of a suit for ejectment, as mentioned above, by the respondent herein, as plaintiff, against the revision petitioner, as defendant, and keeping the same pending will not in any way bar the respondent herein to initiate eviction proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the revision petitioner herein, on the ground of wilful default. Ofcourse, the suit in O.S. No. 9532 of 1984 has been filed by the respondent herein, as plaintiff, against the revision petitioner, as defendant, for damages for use and occupation and for future mesne profits. The respondent herein might have pursued the suit for collection of the abovesaid amount claimed in the suit. But the same was not pursued by both parties. Instead of pursuing the said suit, the revision petitioner himself has deposited the arrears of rent and continued to deposit the rent every month in the account of the respondent herein as per the direction of the High Court. Agreeing to pay arrears of rent and continuing to pay the rent upto date and also agreeing to pay rent on certain conditions, by the revision petitioner, in the additional counter filed after disposal of C.S. No. 239 of 1982, on the file of the High Court, Madras, will go to show that the revision petitioner, the tenant, has himself recognised the existence of relationship of landlord and tenant between himself and the respondent herein and continued to pay rent till this date. In the said circumstances, the contention raised by the learned Counsel for the revision petitioner, as mentioned above will not in any way help him to prevent the respondent herein from pursuing the eviction proceedings.
31. The learned Counsel for the revision petitioner contends that the revision petitioner, as petitioner, filed M.P. Nos. 69, 130 and 131 of 1999 in R.C.A. No. 899 of 1993 for receipt of additional evidence, additional documents and additional memorandum of grounds, respectively that the said petitions were dismissed by the learned appellate authority, without giving any reasons and that therefore, the common orders passed on the said petitions by the appellate authority have to be set aside and the matter be remanded back to the Rent Control Appellate Authority along with the eviction petition filed against the revision petitioner for consideration afresh, in accordance with law. The learned Counsel for the respondent herein, Thiru V.S. Subramaniam, contends contra to it.
32. A perusal of the judgment and common order passed by the learned Rent Control Appellate Authority would show that he has assigned his own reasons in paragraphs 11 to 13 and the conclusion has been aired in paragraph 14 of the said judgment cum common order. Therefore, it cannot be said that th petitions referred to above were dismissed without any discussion by the learned Rent Control Appellate Authority. In view of the said position the decision reported in C. Shanmugham v. N.S.K. Chokkalingam Pillai (1992)1 L. W. 315 and relied on by the learned Counsel for the revision petitioner in support of his contention that failure to consider the evidence on record and arriving at a conclusion without any reasons are ground for setting aside the order and to remand the matter to the appellate authority, is not applicable to the case on hand.
33. That apart, the documents sought to be received as additional documents and additional evidence are the judgment and decree passed in C.S. No. 239 of 1982: the judgment and decree in O.S.A. No. 107 of 1993: the common order in C.R.P. No. 62 of 1998 and 674 of 1998: copies of plaint and written statement in C.S. No. 239 of 1982: copies of all documents in C.S. No. 239 of 1982: order passed by the Apex Court in S.L.P. No. 15024 of 1986: and copy of the challan for deposit of Rs. 3.4 lakhs in C.S. No. 234 of 1982 towards sale consideration and the judgment in C.S. No. 239 of 1982, has already been marked as Ex.R-1 by the revision petitioner, as respondent, before the Rent Controller, which contains pleadings in plaint and written statement. It is not shown as to how the documents filed in C.S. No. 239 of 1982 are relevant for deciding the issue before the Rent Control Appellate Authority, the decision in O.S.A. No. 107 of 1993 has already been reported and the same can be considered by bringing it to the notice of the appellate authority also. The abovesaid documents may not be absolutely necessary to pronounce a judgment or for substantial cause. If the said circumstances are taken into consideration, this Court is of opinion that dismissing the petitions in M.P. Nos. 69, 130 and 131 of 1999 in R.C.A. No. 899 of 1993, by the Rent Control Appellate Authority will not in any way affect the case of the revision petitioner that he has not committed wilful default in the payment of rent. In view of the said position, the civil revision petitions filed in C.R.P. Nos. 2840, 2849 and 2850 of 2000 have no merits and have to be dismissed.
34. The foregoing reasons given in this common order would clearly go to show that the revision petitioner has committed wilful default in the payment of rent. The courts below have rightly come to the conclusion that the revision petitioner has committed wilful default in the payment of rent to the respondent herein. Therefore, there are no warranting circumstances to interfere with the concurrent findings of the courts below.
35. In fine, the civil revision petitions in C.R.P. Nos. 2840, 2848, 2849 and 2850 of 2000 are dismissed. There will be no order as to costs. The report, dated 3.11.2000, submitted by the Assistant Registrar (Original Side II) of the Registry shall form part of the records.