Madras High Court
K.Nagarajan vs V.Subramaniam on 2 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.1825 of 2010 and M.P.No.1 of 2010 K.Nagarajan ... Petitioner vs. 1. V.Subramaniam 2. V.Natarajan 3. V.Vadivel ... Respondents Civil Revision Petition filed under Section 25(1) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 against the fair and final order dated 01.10.2009 made in RCA No.2 of 2008 on the file of the Appellate Authority I Additional Sub Judge, Erode, confirming the fair and final order dated 29.08.2008 made in RCOP No.8 of 2003 on the file of the Rent Controller I Additional District Munsif, Erode. For Petitioner : Mr.V.Rajesh For Respondents : Mr.S.Kaithamalai Kumar ORDER
Animadverting upon the order dated 01.10.2009 passed in RCA No.2 of 2008 by the Appellate Authority-I Additional Sub Judge, Erode, confirming the fair and final order dated 29.08.2008 passed in RCOP No.8 of 2003 by the Rent Controller I Additional District Munsif, Erode, this civil revision petition is focussed.
2. The original landlord deceased Vaiyapuri Mudaliar, during his life time filed RCOP No.8 of 2003 as against the respondent/tenant- Nagarajan, invoking Section 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the ground of willful default in paying the rent in respect of the non residential premises, namely the shop. The tenant resisted petition.
3. During enquiry, on the side of the petitioner/landlord, the third petitioner-Nataraj examined himself as P.W.1 along with P.W.2-Subramaniyam and Exs.P1 to P4 were marked.
4. Ultimately, the Rent Controller, ordered eviction. Being aggrieved by and dissatisfied with the said order of eviction, the tenant preferred appeal, for nothing but to be dismissed, confirming the order of the Rent Controller.
5. Challenging and impugning the orders of both the Courts below, this revision has been focussed on various grounds.
6. The learned counsel for the petitioner placing reliance on the grounds of revision, would put forth and set forth his arguments to the effect, that both the Courts below committed error in holding as though there was willful default in paying the rent.
7. The point for consideration is as to whether there is any perversity or illegality in the orders passed by both the Courts below in holding that there was willful default in paying the rent?
8. A mere poring over and perusal of the records, would display and demonstrate that the RCOP was filed during the month of August 2003, alleging that there were arrears of rent payable by the tenant to the landlord. According to the landlord, the rent was due payable from the month of April 2000 at the rate of Rs.4,500/- per month, till the filing of the RCOP during the month of August 2003. The tenant contended that the monthly rent was only Rs.500/- and that an advance amount of Rs.15,000/- was paid by the tenant to the landlord. However, the lower Court on considering the oral and documentary evidence, ultimately held that the monthly rent was Rs.4,500/-. In fact, the Rent Controller adverted to the earlier suit O.S.No.363 of 2002 filed by the tenant as against the landlord not to evict him, otherwise than in accordance with law and the Rent Controller also gave a finding that there was no cross examination of the landlord's witnesses speaking to the effect that the monthly rent was Rs.4,500/-. In fact, the tenant did not figure himself as a witness and all those factors persuaded the Rent Controller to decide against the tenant and in favour of the landlord. The appellate Court being the last court of facts, also confirmed the finding of facts given by the Rent controller. In such a case, as against such finding of fact, I am having no reason to interfere with the same. Over and above that, pending RCOP as well as RCA, no arrears of rent were paid.
9. At this juncture, I would like to fumigate my mind with the following decision of the Hon'ble Apex Court:
(2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS; 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. 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 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. As such, it is crystal clear that non payment of arrears even during the pendency of the proceedings would be fatal to the case of the tenant. But in this case, there is nothing to indicate that after filing of RCOP, any amount of rent was paid by the tenant to the landlord. As such, I could see no perversity or illegality in the orders passed by the Courts below. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1. The I Additional Sub Judge, Erode.
2. The I Additional District Munsif, Erode