Madras High Court
M.Doss vs A.Sankar on 16 August, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :16.08.2010
Coram
The Honourable Mr.Justice G.RAJASURIA
C.R.P.(NPD) No.3567 of 2009 and
M.P.No.1 of 2010 and M.P.No.1 of 2009
1. M.Doss
2. John Mary ... Petitioners
Vs.
A.Sankar ... Respondent
PRAYER: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order dated 18.09.2009 made in RCA No.356 of 2008 by the learned VII Judge, Court of Small Causes, Madras (Appellate Authority) confirming the order dated 22.04.2008 made in RCOP No.1063 of 2007 by the learned X Judge, Court of Small Causes, Chennai.
For Petitioners : Mr.D.Nelliappan
For Respondent : Mr.Sarfudeen Ali Ahamed
O R D E R
Inveighing the order dated 18.09.2009 passed in RCA No.356 of 2008 by the learned VII Judge, Court of Small Causes, Madras, in confirming the order dated 22.04.2008 passed in RCOP No.1063 of 2007 by the learned X Judge, Court of Small Causes, Chennai, this civil revision petition is focussed by the tenants.
2. Heard both sides.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The respondent/landlord filed RCOP No.1063 of 2007 seeking eviction invoking sections 10(2)(i) and 10(2)(ii)(B) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the grounds of wilful default in paying the rent and different user. Whereupon, the matter was contested.
(ii) On the side of the landlord, he examined himself as P.W.1 and Exs.P1 to P4 were marked. On the side of the tenants, R.W.1 and R.W.2 were examined and Exs.R1 and R2 were marked. Ultimately the learned Rent Controller ordered eviction only on the ground of wilful default, but not on the ground of different user, as against which appeal was filed by the tenants for nothing but to be dismissed. Being aggrieved by and dissatisfied with the orders of both the Courts below, this revision has been filed on various grounds.
4. The learned counsel for the revision petitioner/tenants placing reliance on the grounds of revision, would develop his arguments, which could tersely and briefly be set out thus:
(a) Both the Courts below fell into error in not taking into account the fact that there was no wilful element involved in payment of rent. In fact, while filing the RCOP during the month of June 2007, the landlord went to the extent of describing as though there was wilful default in paying rent during the month of May 2007 also, forgetting for a moment that the rent for the month of May was payable at any time during the month of June.
(b) All cases of default will not amount to cases of wilful default and the subtle distinction was not taken into account.
(c) There is ample evidence to show that the landlord of the respondent herein, who happened to be the landlord in respect of the ground area of the demised premises sent communication to the petitioners/tenants herein to the effect that they shall not pay rent to the respondent herein, as unauthorisedly the respondent herein had put up superstructure and that he was facing eviction proceedings in the regular original suit. Apprehending that there would be danger to the petitioners if such original landlord's mandates were not complied with, the revision petitioner was hesitating to pay rent to the respondent. In the process of such hesitation only there was some apparent default in payment of rent, even though there was no wilful default in payment of rent.
(d) The tenants on receipt of RCOP notice promptly tendered the rent on the first hearing itself, which cannot be denied by the respondent herein. As such the very bona fide act of the revision petitioners would clearly evince and evidence that they had no deliberate intention not to pay rent to the respondent. Even after the filing of the RCOP, the landlord expressed his mala fide attitude in not receiving the rent. Whereupon, the revision petitioners were driven to the extent of depositing the rent by initiating proceedings under Section 8(5) of the Act. As such, the conduct of the landlord pendente lite would speak about his spite and malice as against the tenants herein to evict them from the demised premises.
Accordingly, the learned counsel for the revision petitioners prays for setting aside the orders of both the Courts below and for dismissal of the RCOP.
5. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the revision petitioners/tenants, the learned counsel for the landlord would advance his arguments, which could pithily and precisely be set out thus:
(a) Indubitably and indisputably, unarguably and unassailably the revision petitioners herein entered into compromise only under the respondent and in such a case, they ought not to to have entertained any doubt about the right of the respondent herein to receive rent.
(b) Different reasons as put forth on the side of the tenants are nothing, but a ruse to wriggle out of their liability in not paying the rent during the period concerned.
(c) Tendering of the amount by the tenants on the first hearing of the RCOP would not obliterate or absolve their liability to pay rent earlier itself to the landlord.
(d) The cause of action accrued in favour of the landlord cannot be treated as one erased, because of the tenants' tendering of rent at the first hearing.
(e) The respondent/landlord sent notice during the month of February 2008 about the default committed by the tenants in paying the rent and within two months the arrears of rent were not paid and that itself would attract the presumption as contemplated under the Act that they are in wilful default in payment of rent.
Accordingly, the learned counsel for the respondent prays for the dismissal of the revision petition and for confirming the orders of both the Courts below.
6. The points for consideration are as to:
(1) Whether the tendering of the arrears of rent on the first hearing of the date would enable the tenants to wriggle out of they being labelled as wilful defaulters?
(2) Whether the contention of the revision petitioners/tenants that because of the intervention of the temple authorities who happened to be the real owners of the ground on which the demised premises is situated, they did not pay the rent could be taken as sufficient reason and whether there is any perversity or illegality in the orders passed by both the Courts below?
POINT NOS.1 AND 2:
7. These points are taken together for discussion as they are inter- linked and inter-twined with each other.
8. At the outset itself, I would like to refer to the explanation appended to Sub Section 2 to Section 10 of the Act and it is extracted hereunder for ready reference:
"Explanation:- For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two month's notice by the landlord claiming the rent."
9. In this connection, the decision of the Hon'ble Apex Court reported in (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS is to the following effect, and an excerpt from it would run thus:
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. Furtuher, 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 wiful 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.
10. A mere poring over and perusal of the said provision of law and the judgment of the Hon'ble Apex Court would clearly highlight and spotlight the fact that despite the issuance of notice by the landlord to the tenant calling upon him to pay arrears of rent if there is default, then the presumption that the tenant is in wilful default would arise in favour of the landlord.
11. This is a case in which candidly and categorically the tenants admitted the factum of the landlord having sent the demand notice to the tenants calling upon them to pay the arrears of rent, but even after receipt of such notice they did not pay the rent. In such a case, I am of the considered view that the presumption in favour of the landlord and as against the tenants would arise to the effect that the tenants committed wilful default in paying the rent.
12. For the purpose of comprehensively deciding the matter, I would like to analyse and consider the pleas as put forth on the side of the tenants. No doubt, the Executive Officer/R.W.2 in his deposition would state that a letter addressed to one Shanmugam, a tenant under the temple was put in a cover addressed to the revision petitioners herein. The learned counsel for the revision petitioners/tenants would try to find support from it by pointing out that the very act of the temple authorities in sending Shanmugam's letter to the revision petitioners would clearly highlight and demonstrate that they wanted the revision petitioners herein also to do the same thing as Shanmugam did it in favour of the temple authorities. Further more, the learned counsel for the revision petitioners would also place reliance on Ex.R2 and submit that the revision petitioners herein were virtually intimidated and threatened by the temple authorities stating that the respondent herein was facing eviction and that the same fate would fall on the revision petitioners herein and consequentially the revision petitioners were hoping that they would be able to get direct recognition from the temple authorities that they were tenants under them. As such, cumulatively all these factors bamboozled and beguiled, nonplused and perplexed the mind of the revision petitioners herein and that alone resulted in non payment of rent during the aforesaid period and there was no wilful element involved in it.
13. The learned counsel for the tenants would also further elaborate by pointing out that even if the explanation is not satisfactory to the conscience of the Court, yet taking into account the factual scenario, the Court could hold that there is no wilful element involved in non payment of rent as the tenants who had been paying rent for considerable period might have had no plausible reason to withhold the rent, unless they were in a quandary or quagmire. As such in this case, virtually the tenants because of the confusion created by the temple authorities alone were not in a position to pay the rent regularly, which cannot be labelled or dubbed as wilful default.
14. However, the learned counsel for the landlord would put forth and set forth his contentions on behalf of the landlord to the effect that as per Section 116 of the Indian Evidence Act, the revision petitioners who admittedly entered into the demised premises constituted by the respondent herein, had no right at all to doubt the very right of the respondent to demand and receive rent. It is therefore just and necessary to recall and call up Section 116 of the Indian Evidence Act:
"116. Estoppel of tenant; and of licensee of person in possession:- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
15. A mere reading of that would clearly demonstrate and display that the revision petitioners/tenants were totally wrong in doubting the right of the respondent to demand rent, irrespective of the fact that whether the temple authorities threatened or intimidated them. I could see considerable force in the submission made by the learned counsel for the landlord that the tenants who admittedly entered into the possession of the demised premises under the respondent should not have doubted the right of the respondent to demand rent from the revision petitioners and that too even after receipt of the notice from the respondent demanding rent.
16. My mind is recollect and reminiscent of the following decisions of the Hon'ble Apex Court relating to wilful default:
(i) (2003) 1 SCC 123, [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 the 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 specifies 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 in spite 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 with 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 with Section 8 inasmuch 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 rent 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 with the statutory provisions. Equitable consideration has 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 precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with 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 taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu 2.
6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) 8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.
7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
(ii) (2005) 7 SCC 211 [Atma Ram v. Shakuntala Rani], an excerpt from it would run thus:
"23. It was then faintly submitted before us that the High Court ought not to have exercised its revisional jurisdiction under Article 227 of the Constitution in view of the fact that the two courts below had concurrently found in favour of the appellant. The submission is misconceived. This is not a case where the High Court interfered with concurrent findings of fact. The High Court interfered because there was a serious error of law committed by the courts below and as a consequence thereof they failed to exercise jurisdiction vested in them by law. The exercise of revisional jurisdiction in a case of this nature cannot be faulted."
17. A mere reading of those judgments would clearly show that in this factual matrix the conduct of the tenants in not paying the rent could be taken as wilful. However, the learned counsel for the revision petitioners/tenants would cite the following decisions of this Court:
(i) 2010 (4) CTC 37 [K.Balaraman v. K.Ponnurangam], an excerpt from it would run thus:
"53. Be that as it may, on a careful consideration of the respective contentions as taking note of the attendant facts and circumstances of the case, in an integral fashion and bearing in mind a very vital fact that the conduct of the Revision Petitioner/Landlord is to receive the rent in lumpsum as evidenced by Exs.B1 and B2 receipts and that apart, the Respondent/Tenant has sent the rent for the period from February 1996 to July 1996 payable in August with a letter by registered post enclosing a Demand Draft, etc. and later when the Respondent/Tenant filed RCOP No.110 of 1996, wherein, the refusal of the Revision Petitioner/Landlord to receive the entire arrears of rent on the first hearing of the Petition has been recorded by the learned Rent Controller and subsequently, the same has been deposited into Court, etc. this Court comes to an inevitable conclusion that the Respondent/Tenant has not committed any deliberate or calculated wilful default in regard to the payment of monthly rent and suffice it for this Court to point out that in the instant case, there is no default much less wilful default and viewed in the perspective, this Civil Revision Petition fails."
(ii) 1967 MLJ 324 [Durairaj alias Paramasivam and another v. P.M.S.Rathana Bai], an excerpt from it would run thus:
"....In order to obviate all confusion upon this relationship between a false defence and the existence of a 'wilful default' I think that the following proposition may be enunciated: (1) The fact that the tenant commits default, and puts forward a true explanation thereafter, does not necessarily mean, that the default is not 'wilful'. 'Wilful default' will have to be judged upon the index or basis of a conscious failure fo the tenant to pay rent, without any justification which the Court can accept as taking away the element of 'wilfulness.' The explanation may be true, therefore, and still the default may be 'wilful' for the simple reason that the explanation may not be acceptable, as showing that the default was not 'wilful'. (2) Equally, a tenant may put forward an explanation which is false, and still the default may not be 'wilful' at all. That would depend entirely on the surrounding circumstances and probabilities. (3) But the fact that the explanation is false, does not imply that the default is not 'wilful'. A defaulter may both be guilty of 'wilful default' and may put forward a false explanation for the failure to pay rent, this is fairly obvious, and this possibility seems to have been missed in the analysis by the learned Judge. (4) It would equally follow that the tenant may put forward a true explanation and that this may show that the default was not 'wilful'. No further explanation will then be called for......"
18. A mere perusal of the aforesaid judgments vis-a-vis the judgments of the Hon'ble Apex Court cited supra, would clearly demonstrate and convey that the judgments of the Hon'ble Apex Court would squarely be applicable in the facts and circumstances of the case. No doubt, this Court in the review application reported in 1997 TLNJ 326 [A.M.A.Jabbar v. W.S.Abdul Bari and others] held that where there were arrears of rent of two months paid by the tenant on the first hearing date, there was no wilful default. But here the factual scenario would speak otherwise and factual situation situation involved in this case is entirely different from the facts involved in the cited case. Similarly, the factual scenario in the case reported in 1998 MLJ 399 [Mohammed Arif and others v. K.P.R.Jafarullah] also is entirely different. I would like to point out that merely tendering of the rent on the first hearing of the RCOP would not absolve the tenant from his liability in wilfully committing default in paying rent. However, that could also be taken as one of the factors for deciding as to whether there was wilful element or not in non payment of rent. I would like to extract hereunder the proviso appended to Section10(2)(i) of the Act:
"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."
(emphasis supplied)
19. One should not forget that the term 'not wilful' is used even in the cited proviso. If the Rent Controller finds that there was no wilful element in non payment of rent earlier to the filing of the RCOP, then only the Rent Controller could simply without proceeding further dismiss the RCOP. But in this case, in view of my discussion supra, the Rent Controller could have had no reason to hold that there was no wilful element involved in non payment of rent by the tenants in favour of the respondent herein and that too in the wake of the explanation appended to Sub Section 2 to Section 10 of the Act as already cited supra and discussed.
20. During the pendency of the RCOP, the temple authorities filed M.P.No.1 of 2010 for impleading. I am of the considered view that absolutely there is no rhyme or reason on the part of the temple authorities in trying to get themselves impleaded at the CRP stage and that too, in view of the ratiocination adhered to be me supra. Accordingly, that application is liable to be dismissed and it is dismissed.
21. In the result, I am of the considered view that absolutely there is no merit in this revision and accordingly, it is dismissed confirming the orders of both the Courts below. No costs. Consequently, connected miscellaneous petition is closed.
22. The learned counsel for the tenants would make an extempore submission that the revision petitioners require two years' time for vacating the premises, whereupon, the learned counsel for the respondent would submit that granting three months' time would meet the ends of justice. The fact remains that the revision petitioners/tenants had been in the premises for decades together and they might find it difficult to find alternative accommodation holus bolus. Hence, by way of striking a balance between the two, I would like to grant nine months' time for vacating the premises, by the tenants, subject to payment of rent regularly and even if there is one default, the landlord is at liberty to file E.P. and execute the order of eviction immediately and an affidavit of undertaking shall be filed within a period of fifteen days from the date of receipt of a copy of this order.
16.08.2010 gms INDEX :YES INTERNET :YES To
1. VII Judge, Court of Small Causes, Madras.
2. X Judge, Court of Small Causes, Chennai.
G.RAJASURIA.J., gms C.R.P.(NPD) No.3567 of 2009 16.08.2010