Madras High Court
B. Anraj Pipada vs V. Umayal on 20 January, 1998
Equivalent citations: (1998)2MLJ524
ORDER S. Jagadeesan, J.
1. When the stay petition was listed, the main C.R.P., itself had been taken up for final disposal, since the short question involved is whether the petitioner has committed any wilful default in paying the rent. The respondent herein is the landlord of the petition premises. He filed R.C.O.P.No. 2418 of 1988 on the file of the Rent Controller, Madras to evict the petitioner herein on the ground of wilful default, since he has failed to pay the rent from December, 1987 to June, 1988. The petitioner filed a counter stating that he had not committed any wilful default and that since the respondent failed to pay the property tax, the Corporation Officials insisted that the petitioner should pay the tax. Without paying the tax, he had deposited the rent in the bank. The Rent Controller by his order dated 24.6.1993 allowed the petition for eviction finding that the respondent has not produced any document to establish his defence of depositing the rents in the bank. Further as there is no obligation on the part of the tenant to pay the Corporation Tax, the petitioner ought not to have retained the money to pay the tax and as such the non-payment of the rent by the petitioner is wilful. Aggrieved by the order of the Rent Controller, the petitioner preferred an appeal R.C.A.No. 904 of 1993 on the file of the Rent Control Appellate Authority. The appellate authority concurred with the finding of the Rent Control and dismissed the appeal by his judgment dated 2.7.1997. The present revision has been filed against the said order.
2. It is the contention of the learned Counsel for the petitioner that the petitioner did not commit any wilful default because the usual practice adopted by the tenant is to pay the rent in lumpsum as and when the landlord ask for the rent. Admittedly the rents have not been paid regularly even during the pendency of the proceedings since the landlord has not asked for the same. In fact the petitioner had sent a draft for a sum of Rs. 19,500 dated 12.5.1997 representing the arrears of rent up to 1st May, 1997 and the draft has not been handed over to the learned Counsel for the respondent or to the respondent. The learned Counsel for the petitioner represents that it is the mistake on his part and he requested further time to pay the arrears up-to-date.
3. The learned Counsel for the respondent however contended that R.C.O.P. has been filed on the ground of wilful default and as such the tenant ought to have shown some bona fide not only in paying the arrears of rent, but also in paying the rent regularly during the subsistence of the proceedings. During the pendency of the R.C.O.P. as well as the R.C.A. petitions have been filed under Section 11(4) of the Tamil Nadu Buildings Lease and Rent Control Act and the petitioner was compelled to pay the arrears. Hence by the conduct of the petitioner, it is clearly established that he has committed wilful default, especially when this Court is entitled to take note of the conduct of the petitioner during the pendency of the proceedings.
4. I carefully considered the contentions of both the counsel.
5. At the outset, 1 would state that there is some force in the contention of the learned Counsel for the respondent. The plea of the petitioner that he had been paying the rent in lumpsum cannot be accepted. The lower appellate court has categorically found that such a plea had not been raised in the counter filed by the petitioner before the Rent Controller. The explanation given by the petitioner for the delay in payment of rent is only an after thought. Further as already stated, the rents have been paid only at the instance of the court's order during the pendency of the proceedings. The petitioner though addressed a letter to the respondent dated 12.5.1997 enclosing the draft for Rs. 19,500 it is not clear as to why he has forwarded the same to his counsel. The petitioner's counsel has addressed a letter to the respondent's counsel dated 19.7.1997 stating that he is enclosing the draft as well as the letter sent by his client. But this letter had not been handed over to the counsel for the respondent till the matter was heard on 6.1.1998. Even assuring that the enclosed draft can be taken in respect of the bona fide conduct of the petitioner, but still from May, 1997 up to December, 1997, admittedly, the rents have not been paid.
6. When the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default. I can have support of judgment of this Court reported in Sundaram Steel Company etc. v. S. Lakshmi (1997) 2 L.W. 501, wherein it is held, as follows:
7. Further, I also find the observation in the impugned order of the Appellate Authority stating that in the petition filed by the landlady under Section 11 of the Act, the petitioners were directed to deposit on 29.9.1989 a sum of Rs. 14,700 representing the rental dues as on that date. I also find that the said sum was subsequently deposited on 30.9.1989. That is why the Appellate Authority also observes that even after filing of the eviction petition, the tenants did not pay the rental arrears for several months presumably for as many as 21 months.
8. In the above circumstances, there is no case for admission of this Civil Revision Petition and hence it is dismissed. Consequently C.M.P. Nos. 15891 and 15892 of 1996 are dismissed. No costs.
7. Yet another judgment reported in Poorman 's Depot Registration Firm v. Krishnan , wherein it has been held as follows:
10. The fact remains, the tenant continued to be in default in payment of rent. The tenant is bound to pay the rent regularly as agreed. The subsequent conduct of the tenant taken into account to come to a conclusion whether there was any sueine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available on record would prove that the tenant was in the habit of paying the rent irregularly. There is no wrong in taking into consideration of the cumulative effect of the conduct of the tenant in payment of the rent to assess the nature of default. The Appellate Authority has applied his mind with respect to the documents and evidence to come to the conclusion that the tenant has committed default in payment of rent wilfully. In the circumstances of the case and on the basis of the evidence on record, I am not in a position to take a different view.
8. In the unreported judgment in C.R.P.Nos. 1859 and 1976 of 1994, I have held as follows:
4. In fact in the judgment reported in Thayammal v. Subramanian (1989) 1 M.L.J. 407, it has been held that where the tenant sent the arrears of rent on receipt of notice from the landlord, he cannot be permitted to plead that there was no wilful default. On the same principle, here also the conduct of the petitioners in not paying the rent for 53 months during the pendency of the proceedings is nothing but wilful default.
5. Even assuming that the default committed by the tenants during the pendency of the proceedings gives anew cause of action, I am of the opinion that only if the tenant has got sufficient cause for the non-payment of the rent, then only the proceedings has to be initiated afresh by the landlord so that evidence can be let in. In the absence of any explanation on the part of the tenants for non-payment of rent, it is to be held that the tenants have not paid the rent regularly during the pendency of the proceedings without any reason or explanation and this will amount to nothing but wilful default and there is no need for any evidence to be taken to give a finding on this aspect. Hence, there is absolutely no need for the landlord to file a petition afresh on the basis of the wilful default committed by the petitioner during the pendency of the proceedings.
9. Yet another judgment in C.R.P.Nos. 1221 and 1222 of 1997, dated 19.12.1997, wherein I have referred to all the above judgments and held that the conduct of the tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent conduct of the tenant can be taken into consideration in deciding the matter, In the light of the above principles, it is clear that the petitioner has committed wilful default not only prior to the filing of the R.C.O.P., but also during the subsistence of the proceedings before the Rent Controller, the Appellate Authority and as well as before this Court. Hence I do not see any valid reason to differ from the orders of the courts below. Accordingly they are confirmed and the C.R.P. is dismissed with a cost of Rs. 2,500. Consequently, C.M.Ps. are also dismissed.
10. Considering the attitude of the petitioner, he is granted two months time to vacate on condition that he should pay the past arrears of rent as well as the future rent upto March, 1998 within two weeks from today, failing which the petitioner will not have the benefit of the time for eviction.