Madras High Court
Mohamed Rowther vs S.S. Rajalinga Raja And Ors. on 29 March, 1994
Equivalent citations: (1994)2MLJ509, 1995 A I H C 3440, (1994) 2 MAD LJ 509
ORDER Abdul Hadi, J.
1. The tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as 'the Act') is the petitioner is this civil revision petition against the concurrent eviction order passed, one by the Appellate Authority in R.C.A. No. 1 of 1993 and another by the Rent Controller in R.C.O.P. No. 21 of 1989.
2. The Rent Controller passed the eviction order on three different grounds, viz., (1) wilful default for a period of 11 months from September, 1988 in the payment of monthly rents.(under Section 1O(2)(i) of the Act, (2) the respondents landlords bona fide require the petition building for demolition and reconstruction (under Section 14(1)(b) of the Act, and (3) denial of title of the landlords with reference to the superstructure on the petition-site. (No doubt in the R.C.O.P. the respondents landlords have not specifically raised this ground of denial of title, but as against the plea of the landlords that both the site and superstructure were leased out to the petitioner, the tenant claimed that only site was leased out to him and the superstructure was his. The Rent Controller held that both the land and the superstructure were together leased out to the petitioner. In this connection only the Rent Controller held that there was denial of title of the respondents in respect of the above said superstructure and that the said denial was held to be not a bona fide one.
3. The appellate authority in the above said appeal filed by the tenant concurred with the Rent Controller on the question of wilful default and bona fide requirement of the building for demolition and reconstruction. It no doubt also concurred with the Rent Controller holding that the superstructure also belonged to the landlords and both the land and superstructure were lease out as 'building' to the tenant. But, it did not deal with the question whether eviction could be granted on the ground that denial of title was not bona fide.
4. Learned Counsel for the petitioner attacked all the findings of the authorities below. But, I must say that even if I sustain one of the above said three independent findings of the authorities below relating to the above referred to three independent grounds for eviction there is no justification for any interference by me in this revision. Therefore. I shall take up first the question of wilful default. On this point the authorities below pointed out that the petitioner as R.W. 1 himself has admitted in cross-examination that at the time when R.C.O.P. was filed, there were arrears for the above said 11 months. (R.C.O.P. was filed on 24.8.1989). The authorities below point out that R.W. 1 also admitted that as on 25.2.1989, there were arrears for six months. The relevant admissions of R.W.I area as follows:
From the above deposition it could be clearly inferred that the default was wilful. All that the tenant deposes as explanation for the delayed payment every month is that the landlord did not demand it and hence he did not pay. But, it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord in that regard. The above deposition clearly shows that for every month there was delayed payment. In one case, as per the above deposition, though six months' rent was due, he paid only one month's rent despite the fact that a demand was made for six months; This can be inferred from the reply.
So, despite the demand, the payment was. not made in the abovesaid case. So, it is-den that the default was wilful.
5. But the learned Counsel for the petitioner submits that even one day prior to the filing, of the R.C.O.P. that is, on 23.8.1989 itself, the entire, arrears were paid off and that it self will show that there was no wilfulness in the default. In this connection, learned Counsel also relies on S. Sundaram v. V. R. Pattabiraman A.I.R. 19858.S.C. 582. There, the Supreme Court was considering a batch of rent control appeals under the Act and the main point dealt with by the Supreme Court was with reference to Explanation to Section 10(2) proviso dealing with constructive wilful default. That point has no application to the present case. However, after dealing extensively with the abovesaid point, the Supreme Court while proceeding to deal with the facts in each of the appeals, referred to one of the appeals before it, viz., Civil Appeals No. 1178 of 1984 and observed as follows:
In Civil Appeal No. 1178 of 1984 it would appear that though the tenant had committed a default but he had paid the entire rent well before the filing of the suit by the landlord. In fact, the suit for eviction was filed by the landlord not on the ground of pending arrears but to penalise the tenant for having defaulted in the past, Such a suit cannot be entertained because once the entire dues are paid to the landlord the cause of action for filing or a suit completely vanishes. Hence, the suit arising out of Civil Appeal No. 1178 of 1984 must be dismissed as being not maintainable and the order of ejectment passed by the High Court is hereby set aside.
The abovesaid learned Counsel relied on heavily on this paragraph of the judgment to contend that once the entire admitted arrears of rent are paid off before the filing of the eviction petition, there cannot be any eviction on the ground of wilful default at all. From reading of the abovesaid paragraph of the above referred to Supreme Court decision it is clear that in the said Civil Appeal No. 1178 of 1984 there was only proof that there was 'default' (not wilful default) and in such a situation the tenant paid the entire default amount before filing of the suit by the landlord therein. Only in that context, the Supreme Court observed that the eviction suit therein cannot be entertained because, once the entire dues are paid to the landlord the cause of action for filing the suit completely vanishes. But, that is not the case there. As I have already pointed out, the above referred to extracted evidence of R.W. 1 himself clear brings out the wilfulness in the default committed by the tenant with reference to the abovesaid default period of 11 months prior to the filing of the eviction petition. So, the Supreme Court decision has no application to the present facts. On the other hand, this Court has held in Nagarathinam Pillai v. Mahadevier (1969)2 M.L.J. 492, as follows:
The fact that the tenant deposited the rent subsequently and quite early, after the inception of the proceedings, may serve to extenuate his default in the sense that he might be now granted a reasonable time for vacating the premises. But, it is not a ground that the law an recognise for holding that a tenant who deposits such rent, is not guilty of 'wilful default' with regard to the period of default proceeding the petition for eviction.
6. Another decision cited by learned Counsel for the petitioner Ramaswamy Pathar v. Thiagaraja Chettior (1983) 1 M.L.J. 114, has absolutely no application to the present case. There the fact that the tenant was paying rents in lumpsum was admitted which is not the case here. Only in that context, this Court has observed that it is usual for business people to keep the rent accumulated as savings and that if the landlord is particular about the stipulation in the leasedeed for the payment of the rent every month, he would not have allowed the tenant to keep the rents accumulated for being paid whenever the landlord went and demanded. The question of landlords allowing the tenant to keep the rents accumulated, does not at all arise here.
7. In view of my concurrence with both the Authorities below regarding the abovesaid wilful default question, there is actually no necessity to deal with the other points raised by learned Counsel for the petitioner. Anyway, I shall touch upon them also. Insofar as the question regarding the ownership of superstructure, it is clear from Ex. R-1, the rental deed dated 19.1.1983 between the parties that what has been leased out is both land and superstructure thereon, and if that is so, apart from other things, Section 92 of the Evidence Act would be a bar for the tenant to contend differential as stated above. Further, it is also in evidence that the property tax for the superstructures was also paid by I he landlords and this has been admitted also by R.W. 1 and it is also borne out by Ex. P-9.
8. The finding regarding denial of title flows from the abovesaid finding regarding ownership relating to superstructure. Learned Counsel no doubt submits that the tenant bona fide interpreted Ex. R-1 and came to the conclusion that only land was leased out. After going through Ex.R-1, it is quite clear to me that no such interpretation in possible and the finding of the Rent Controller that denial of title was not bona fide, cannot be assailed.
9. The other contention of learned Counsel for petitioners in that the undertaking required for a petition under Section 14(1)(b), as mentioned, in Section 14(2)(b) is not found either in the R.C.O.P. or in the evidence adduced by the landlords. But learned Counsel for caveator has produced today an certified copy of the affidavit by the landlords in the court below giving the necessary undertaking.
10. At any rate, in view of the above referred to finding given by me on the other issues of the case, there is absolutely no justification for any interference by me in this civil revision petition.
11. In the result, the civil revision petition is not admitted, but dismissed. No costs.