Madras High Court
C. Natarajan vs S. Anandammal on 28 April, 1988
Equivalent citations: (1988)2MLJ349
JUDGMENT Srinivasan, J.
1. The revision petitioner is aggrieved by the concurrent order of eviction made by the authorities below on the grounds of wilful default in payment of rent and requirement for own occupation for he purpose of business by the landlady.
2. As regards the wilful default, the averment of the landlady is that, the tenant is in arrears for a period of 17 months from 1.6.1979 to the end of October, 1980. The petition was filed in November, 1980. As regards the requirement for own business, the averment of the landlady is that a Syrup business is carried on in a rented shop in Madurai by her sons and that she required the petition building for the purpose of that business.
3. While admitting that the rent was in arrears for a period of 17 months, the case put forward by the tenant in the counter-statement is as follows: "The petitioner used to collect the rent once in twp or three to four months as and when it suits her convenience. Prior to the issue of registered lawyer notice for some time the petitioner was not accepting the rent as she has been insisting upon the rent being enhanced to a sum of Rs. 200 per month. As this respondent refused, she caused to send a registered notice. Immediately this tenant has sent suitable reply and also, a draft for Rs. 1,200. Subsequently, the rent has been sent by money order regularly till 15.11.1979. This tenant is doing book binding business. On account of rise in prices for raw-materials the book binding business was every much affected in 1980. Further this tenant's health was also affected and he had continuous chest pain, body-ache, for ' which he had treatment in Government hospital and also he had benefits of E.S.I. Hospital, that is why the rent could not be paid in time. All the rents are now being arranged to be paid as there is no improvement in his business".
4. As regards the other ground, the tenant filed an additional statement of objection before the Rent Controller in which he had denied the bona fide requirement of the landlady. He had taken a plea that the landlady had other buildings which fell vacant and they were not occupied by her at the time when the petition was filed.
5. The Courts below have accepted the evidence of the landlady and held that the requirement for her own business is bona fide. On the question or wilful default, the Courts below have relied upon the conduct of the tenant both prior to the filing of the petition and after the filing of the petition and come to the conclusion that the default is wilful.
6. It is contended vehemently by learned Counsel for the petitioner that the authorities below were in error in relying upon the circumstances that the tenant had paid the rent only after the filing of the petition under Section 11(4) of the Act by the landlady. Learned Counsel draws my attention to the documentary evidence filed by the tenant and alleges that the various documents filed by him proved that the rent has always been paid only in lumpsums once in few months and therefore the continuous course of conduct of the landlady was to accept the rent in lumpsums once in few months. Learned Counsel places reliance on decisions of this Court in Khivraj Chordia v. G. Maniklal Bhattad reported in A.I.R. 1966 Mad. 67 : I.L.R. (1966) 1 Mad. 451 : 78 L.W. 522. According to learned Counsel, the facts of the present case will be covered by the following observation made by the learned Judge Ramamurti J., in that case. (Page 72) Keeping in mind the main object of the enactment, namely, prevention of unreasonable eviction of tenants, the principle that emerges from the several decisions is that for default to be regarded as wilful default, the conduct of the tenant should by such as to lend to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. If the default was due to accident or inadvertence or erroneous or false sense of security based upon the conduct of the landlord himself the default cannot be said to be wilful default. It is not possible to lay down any hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and wilful default should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the prior conduct of the tenant consisting of chronic defaults taken along with a totally false and reckless plea of discharge or any other wholly untenable plea may amount to wilful default. But at the same time, certain pleas raised by the tenant, but negatived by the court on assessment of the evidence adduced by the landlord and the tenant, may constitute proof of bonafides on the part of the tenant, as to rule out any theory of wilful default.
In my opinion, so long as the defence version or explanation of the tenant as to why there was delay in the payment of rent has not been ruled out or rejected as utterly worthless or wholly false, as if his case was one which required consideration in the hands of the court involving and necessitating a proper appraisal of the evidence added on both sides, in such a setting of the case, it must be held that the default would not be wilful default. In cases, where the evidence mainly consists of the interested testimony of the landlord and the tenant on either side, the court should not lightly and readily prefer the evidence of one party to the other ignoring the probabilities of the case and the prior conduct and actings of the parties.
7. Learned Counsel also submits that this case will be governed by the ruling in T.S. Rajagopalan v. M.N. Saraswathi Ammal 1976 T.L.N.J. 51. In that case Justice Ramaprasad Rao has laid down the law in the following terms:
Repeatedly the Courts here and elsewhere have taken the view that the expression 'wilful default' is not an expression of art, but a meaningful phraseology used by the statute with a definite purpose. The default committed by a tenant should be so telling and conspicuous that any reasonable person appraised of such circumstances and having the occasion to adjudicate upon such facts should come to the conclusion that the tenant was recalcitrant and supremely indifferent and purposely evading the performance of the legitimate obligations of sending the rents to the landlady in time. If however, the entirety of the facts presents a situation whereby a genuine doubt could be created as to whether such an attitude of the tenant in sending the rents in a delayed fashion was due to the landlady's prior acceptance of such tenders and that too without demur, then it cannot be automatically concluded that even in such circumstances, the badge of wilful default should be assigned to the conduct of the tenant; the wilfulness should be the result of recalcitrance and deliberateness.
8. Learned Counsel also places reliance on the definition of wilful default given by the Supreme Court in S. Sundaram v. V.R. Pattabhiraman A.I.R. 1985 S.C. 582 (1985) 1 S.C.C. 591. In that decision, it has been held that a default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom.
9. Turning to the facts of the case, it is seen that the tenant was in arrears of rent for a period of 11 months in August, 1978. The landlady issued a lawyer's notice on 25.8.1978 which is marked as ExA5 calling upon the tenant to pay the arrears. In the reply sent by the tenant, marked as Ex.A.8, he had set up a case of some negotiations for settlement and also alleged that it was the habit of the landlady to collect the rent through her agent once in a few months in lumpsum. Along with reply notice the tenant had sent a sum of Rs. 1,100 by way of draft. Immediately the landlady sent a rejoinder, marked as ExA.9, on 17.9.1978 denying the allegations made by the tenant in Ex.A.8. The landlady has also stated that she was accepting the sum of Rs. 1,100 without prejudice to her rights. Thereafter the tenant was sending the rent by money order. Ex.A.10 is the money order dated 21.11.1978 by which a sum of Rs. 200 representing two month's rent was sent by the tenant. Under Exs A.11 and A.12, sums of Rs. 100 each were sent representing one month's rent. Under Exs. A.13 and A.15, Rs. 200 were sent on each occasion representing 2 months' rent. The last of the money orders was dated 15.11.1979. Thereafter the tenant had stopped payment of rent. After waiting till November, 1980 the landlady filed the petition for eviction stating that the rent was in arrears for a period of 17 months, i.e. from 1.6.1979 to the end of October, 1980. The eviction petition was posted for first appearance to 20.12.1980. Though the tenant entered appearance, he did not pay the arrears of rent. Applications were filed by the landlady in I.A.Nos. 267 and 268 of 1981 on 30.3.1981 claiming arrears of rent for 22 months which worked out to Rs. 2,200 under Section 11(4) of the Act. Thereafter the tenant paid a sum of Rs. 1,900 towards the arrears. Another application had to be taken out by the landlady under Section 11(4) of the Act again for collecting further arrears.
10. As I have already pointed out, in the counter-statement the definite case of the tenant was that the landlady used to collect the rent once in 2 to 3 or 4 months whenever it suited her convenience. In the reply notice Ex.A.8 sent in September, 1978, the tenant had taken the stand that the landlady used to collect the rent through her agent once in few months. There is no evidence whatever in support of this particular stand taken by the tenant. Even in the chief examination the tenant had stated that the tenants used to pay the rent by themselves once in three months, 4 months or 5 months. The case that the landlady used to collect rent once in few months was given a go by at the stage of evidence. There is neither pleading nor evidence to the effect that there was an agreement between the landlady and the tenant that rent should be paid once in few months. As regards the 17 months for which the tenant was in arrears of rent, while admitting the factum of arrears the plea put forward in the counter statement was that he was ill for some time and that he had treatment in Government Hospital which prevented him from paying the rent in time. There is no evidence whatever to support his claim that he was ill or that he was admitted in Hospital. There is no reference in his evidence as R.W.1 that he could not pay the rent for 27 months because he was not doing well. This specific case pleaded in the counter statement is not substantiated by any evidence.
11. Learned Counsel for the petitioner/tenant strongly relies on the exhibits marked by him, namely, Exs. B.1 to B.35 and Ex. A.1 to A.4 which go to show that prior to 1978 the tenant was regularly paying the rent only in lumpsums and once in a few months. No doubt the various receipts filed by the tenant proved that rent was being paid once in a few months. The maximum period for which the rent was accumulated during those years was only 7 months. There was no occasion on which the rent was accumulated for 17 months or even for a period of one year. Whatever may be the state of affairs prior to 1978, the position is certainly changed in 1978 when the landlady issued a notice under Ex.A.5 calling upon the tenant to pay the arrears for 11 months. Even when he sent rent for 11 months along with the reply notice, the landlady made it clear that she was accepting it without prejudice. After the exchange of the notices, it was not open to the tenant to contend that he would pay rent once in few months as he used to pay prior to the issue of lawyer notice. The conduct of sending the money orders, viz., Exs A.10 to A.15 would clearly prove that he was called upon to pay rent every month. He had in fact sent two money orders under ExsA.11 and A.12 representing rent for the particular months. The maximum prior for which the rent was accumulated was 2 months when he was sending rent by money order. It was not open to the tenant to contend that he would accumulate the rent for several months and pay the landlady in lumpsum when there is no such agreement between landlady and the tenant; nor is it possible to accept the contention that the tenant was lulled into a false position that he could pay the rent once in few months in lumpsum. As I have stated, the issue of lawyer's notice and the subsequent conduct of the tenant would go against this contention raised by learned Counsel for the petitioner. The decisions referred to by learned Counsel for the petitioner, namely, Khivraj Chordia v. Maniklal A.I.R. 1966 Mad. 67 and 7.5. Rajagopala v. Saraswati Ammal 1976 T.N.LJ. 51 do not apply to the facts of the present case. The facts in those cases do not bear any resemblance whatsoever to the facts in the present case.
12. Learned Counsel relied upon the decision of Justice Rajagopala Ayyengar in Raju v. E.V. Ramaswami Naicker reported in 67 L.W. 573 : (1954) 2 M.L.J. 511 : A.I.R. 1954 Mad. 1016. In that case it was held that the tenant could not be said to have committed wilful default when the landlord had been lax in the collection of rent and has not even made a single written demand for the rent which was in arrears. Obviously that decision cannot apply to the facts of the present case as there was a demand by issue of Lawyer's notice.
13. Having regard to the conduct of the tenant both prior to the filing of the eviction petition after 1978 and after the filing of the petition before the filing of the application under Section 11(4) of the Act shows that the tenant is not at all inclined to pay the rent. This is a clear case of deliberate, intentional, calculated and conscious default with full knowledge of legal consequences. After having received a notice from an advocate and having been told that the payment of rent for 11 months sent along with his reply notice was accepted only without prejudice by the landlady, the tenant should have been vigilant in payment of rent. He should have taken care to pay rent every month as required by law. Having defaulted in payment of rent for 17 months and not paying the same even after the filing of the eviction petition and waiting for the landlady to file an application under Section 11(4) of the Act, certainly, the conduct of the tenant amounts to supine indifference and there is no doubt whatever that the default is wilful. Consequently the orders of eviction passed by the authorities below have to be upheld.
14. As regards the other ground that the landlady requires the premises for own occupation, the plea raised in the additional counter is that the landlady had other buildings which fell vacant and which were not occupied by her at the time of the filing of the petition. It is no doubt true that in the evidence, P.W.1 had admitted that other building owned by the landlady fell vacant, but his evidence itself makes it clear that the other buildings which fell vacant were not non-residential premises. In his evidence, P.W.1, has stated that two persons by name Jagannathan and Subbaiyan had vacated the premises occupied by them. As regards Jagannathan, the landlady obtained possession by filing an eviction petition. The said Jagannathan was occupying a building in North Krishnan Koil Street. His evidence as P.W.1 is that the said building was a residential premises and not non-residential building. There is no evidence contrary on the side of the tenant. As regards the other building that became vacant which was occupied by one Subbaiyan, it is stated by P.W.1 that Subbaiyan was residing in Arappalayam and after he vacated the premises another tenant had come to occupy the said premises. The evidence of P.W.1 makes it clear that the plea of the revision petitioner that at the time of filing of the petition they were not non-residential premises cannot be taken advantage of to contend that the landlady is having other non-residential building which could be used for her own business. The contention that the ground for eviction was not sustainable does not hold good in view of the evidence. The learned Counsel wanted to rely on the decision of the Supreme Court reported in Hasmat Rai v. Raghunath Prasad A.I.R. 1981 S.C. 1711 : (1981) 3 S.C.C. 105. It was a case which arose under Madhya Pradesh Accommodation Control Act dealing with the requirement to be specified for getting an order of eviction under Section 12(1)(f) of the said Act, the Supreme Court made the following observations at page 1714:
Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under Section 12(1)(f). He must, therefore, establish (i) that he requires bonafide possession of a building let for non-residential purpose for continuing or starting his business; and (ii)that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under Section 12(1)(f) the Court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well established proposition that any amount of proof offered without pleading is generally of no relevance.
15. The language used in Section 12(1)(f) of Madhya Pradesh Act makes it necessary for the landlord to plead and prove that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. Significantly such language is absent in the Tamil Nadu Act. In so far as the Tamil Nadu Act is concerned, Section 10(3)(a)(iii) provides that a landlord may apply to the Rent Controller for an order directing the tenant to put the landlord in possession of the building in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building, in the city, town or village concerned which is his own'. The only requirement under the said section is that the landlord should not be in occupation of a non-residential building for the purpose of business which he is carrying on. The difference in the language between Madhya Pradesh Act and the Tamil Nadu Act is quite evident and no reliance can be placed upon the observations of the Supreme Court which were made in a case that arose under the Madhya Pradesh Act. So far as this case is concerned, there is sufficient plea in the petition of the landlord to the effect that the landlady is in requirement of the petition building for the purpose of a business which is carried on by her sons. The only contention raised by the tenant as against that plea is that the landlady had other building vacant at the time of filing of the petition and that she had not occupied the same. I have already pointed out that the other buildings which were admittedly vacant were only residential in character and not non-residential.
16. Hence it is clear from the facts that the landlady was not in occupation of a non-residential building for the purpose of running a business which he sons were carrying on. Hence bonafide requirement of the landlady for the purpose of her own business is made out on the evidence adduced by the landlady.
17. In the result both the revision petitions fail and they are dismissed with costs.