Madras High Court
Arunagiri vs H.Surajbai on 26 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.2431 of 2012 and M.P.No.1 of 2012 Arunagiri .. Petitioner vs. H.Surajbai rep.by her power agent D.Hiralal Sharma ... Respondent Civil revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23/73 and 1 of 1980 against the judgment and decree dated 26.03.2012 passed by the learned VIII Judge, Court of Small Causes, Chennai in R.C.A.No.822 of 2007 reversing the order and decree dated 28.09.2007 passed by the learned XVI Judge, Court of Small Causes, Chennai in RCOP No.1993 of 2006. For Petitioner : Mr.R.Thanjan For Respondent : M/s.Shah and Shah ORDER
Animadverting upon the judgment and decree dated 26.03.2012 passed by the learned VIII Judge, Court of Small Causes, Chennai in R.C.A.No.822 of 2007 reversing the order and decree dated 28.09.2007 passed by the learned XVI Judge, Court of Small Causes, Chennai in RCOP No.1993 of 2006, this civil revision petition has been focussed by the tenant.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the Rent Controller.
3. Compendiously and concisely, the germane facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
(i) The respondent herein/the landlady preferred RCOP No.1993 of 2006, to get evicted the revision petitioner/tenant on the ground of wilful default in paying the fair rent as fixed by the learned Rent Controller in one other RCOP proceedings, invoking Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
(ii) The tenant resisted the RCOP.
(iii) During enquiry, on the side of the landlady, one Jagadesh Prasad examined himself as P.W1 and marked Exs.P1 to P4. On the side of the respondent/tenant, R.Ws.1 and 2 were examined and no document was marked.
(iv) Ultimately, the Rent controller dismissed the RCOP.
(v) Challenging and impugning the order of the Rent Controller, the landlady preferred appeal before the Appellate Authority. Whereupon, the appellate authority considering the pros and cons of the matter ordered eviction setting aside the order of the Rent Controller.
(vi) Being aggrieved by and dissatisfied with the order of the appellate authority, this revision has been focussed by the tenant on various grounds.
4. Heard both sides.
5. The learned counsel for the revision petitioner/tenant placing reliance on the grounds of revision would pyramid his argument, which could pithily and precisely be set out thus:
- The appellate authority failed to take note of the fact that the revision petitioner/tenant has been paying the rent regularly.
- There is suppression of the fact by the landlord about the payment of even the fair rent by the tenant to the landlord till today.
- The landlord was not in the habit of issuing rent receipts and that is why the tenant could not produce any document evidencing the payment.
6. Per contra, the learned counsel for the respondent/landlord in a bid to extirpate and torpedo the arguments as put forth on the side of the tenant would pilot his argument, which could succinctly and precisely be set out thus:
- Absolutely there is no rhyme or reason on the part of the tenant in contending that the landlady was not in the habit of issuing receipt etc. In fact, in the earlier RCOP proceedings, the Rent Controller concerned fixed the fair rent by passing the order on 20.01.2005 and thereafter, no appeal was preferred by the tenant. In fact, the landlady only preferred appeal and it was disposed of subsequently, confirming the order of the Rent Controller in fixing the fair rent.
- In the meanwhile on 13.11.2006, the present RCOP for eviction on the ground of wilful default in paying the fair rent was filed. However, the arrears were not paid once. Admittedly, the part of the arrears was paid only on 14.09.2010 and as such, the Rent Controller failed to take note of the wilful default committed by the tenant and simply dismissed the RCOP. Whereas the appellate authority rectified the mistake committed by the lower authority and held that there was wilful default in paying the rent and as such, absolutely, there is no perversity or illegality in the order passed by the appellate forum.
7. The point for consideration is as to whether the findings of the appellate authority that there was wilful default in paying rent is not bound by any evidence or any probabilities?
8. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court and certain excerpts from those decisions would run thus:
(i) (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS relating to the concept 'Willful default.' 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 fully 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 wilful 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.
(ii) (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], and 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."
9. One other decision of this court is reported in 2000-3-L.W.634 [M/s.Guru Associates rep.by its Partner Mr.Lalithakumar Jain and Lalithakumar Jain vs. B.A.Balasubramaniam]. Certain excerpts from it would run thus:
"11. Under Section 11 (1) of the Act, it is the duty of the tenant to deposit all arrears of rent due in respect of the building upto the date of payment or deposit and continue to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceeding before the Controller or the Appellate Authority, as the case may be, Sub-Section (4) of Section 11 says, if any tenant fails to pay or to deposit the rent as aforesaid, the Controller or Appellate Authority, as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building."
10. My mind is reminiscent and redolent of the decision of the Hon'ble Apex Court reported in (2002) 3 SUPREME COURT CASES 98 J.J.LAL PVT.LTD.AND OTHERS V. M.R.MURALI AND ANOTHER relating to failure on the part of the tenant in paying the fair rent as fixed by the Rent Controller and certain excerpts from it would run thus:
"24. However, it has been brought to our notice that there are several litigations pending between the parties. One of them, relevant for our purpose, is proceedings for fixation of fair rent. The rate of rent in the present proceedings have been found by the Appellate Authority and the High Court to be at Rs 1000 and 4000 respectively in respect of the two doors. The Rent Controller has found the fair rent of the premises to be still higher and the Appellate Authority has further enhanced the rate of rent in the proceedings for fixation of fair rent applicable to the premises. The tenants have filed civil revisions in the High Court alleging the fixation of fair rent to be on the higher side. To give a quietus to the dispute as to the rate at which the tenants should pay the rent of the premises we deem it proper to direct that the tenants shall remain liable to pay rent at the rate of Rs 1000 per month in respect of Door No. 264 and at the rate of Rs 4000 per month for Door No. 244 for the period for which contractual rate of rent applies. They shall also remain liable to pay fair rent as determined in the proceedings relating to its fixation as and when they achieve a finality. So long as the proceedings for determination of fair rent do not achieve a finality the tenants must comply with the interim order dated 11-1-1999 whereby this Court directed the tenants to deposit rent at the rate of Rs 13.331 (sic) in respect of Door No. 244 and at the rate of Rs 1000 per month in respect of Door No. 264 with effect from 20-7-1998. The tenants, to be entitled to continue in possession of the premises, must clear all the arrears of rent within an appointed time and then pay regularly, month by month, the rent which is legitimately due and payable by them."
(emphasis supplied)
11. Indubitably and indisputably, unarguably and unassailably, the tenant did not agitate as against the quantum fixed by the Rent Controller by an order dated 20.01.2005 in fixing the fair rent in the earlier RCOP proceedings and it was only the landlady, who preferred appeal, which was also disposed of confirming the fair rent fixed by the Rent Controller. As such, the Rent Controller, on coming to know of the fact that there was non-payment of arrears of fair rent ever since April 2004 based on the fair rent fixed by the Rent Controller, should have held that there was wilful default in paying the rent.
12. Candidly and categorically, the tenant admitted that he paid the fair rent only on 14.09.2010 and that itself is indicative of the fact that there were arrears in paying the fair rent ever since April 2004 till 14.09.2010. At least on filing of the RCOP on 13.11.2006 for eviction on the ground of wilful default, if there was payment of arrears of rent by the tenant, then the matter would have been different. But that was not the case here.
13. Considering the pro et contra, the appellate authority held that there was wilful default in paying rent, which is in commensurate with the dicta as found enunciated in the aforesaid precedents, warranting no interference in this civil revision petition.
14. Accordingly, the point is decided in favour of the respondent/landlady and as against the revision petitioner/tenant.
15. In the result, this civil revision petition is dismissed and there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
16. On hearing the order, the learned counsel for the revision petitioner/tenant would make an extempore submission to the effect that sufficient time, so to say, a year's time might be granted for his client to vacate the premises as it would be difficult for his client to seek alternate accommodation. Whereupon, the learned counsel for the respondent/landlady would submit that such granting of a year's time would put the landlady, into discomfiture and difficulties.
17. Hence, by way of striking a just balance between the two, I would like to grant eight months' time from this date to vacate and hand over vacant possession of the demised premises to the landlady, subject to payment of rent regularly including the arrears of rent, if any, till handing over of possession of the premises concerned. The petitioner shall file an affidavit to that effect within 15 days from today.
26.07.2012 vj2 Index : Yes Internet: Yes G.RAJASURIA,J., vj2 To
1. The VIII Judge, Court of Small Causes, Chennai
2. The XVI Judge, Court of Small Causes, Chennai CRP NPD No.2431 of 2012 26.07.2012