Madras High Court
Subbiah vs Gopalakrishna Naidu on 24 December, 1999
Equivalent citations: 2000(2)CTC88, (2000)1MLJ632
ORDER
1. The tenant is the revision petitioner. The respondent/landlord sought his eviction on the ground of wilful default in the payment of rent.
2. The averments made in the petition for eviction are as under:
The rent for the premises was Rs.90 per month originally. The respondent/landlord filed RCOP No./66/1989 before the Rent Controller, Cuddalore, on 28.11.1989, for fixation of fair rent. The fair rent was fixed at Rs.155 per monthly with effect from the date of petition. The respondent/landlord filed an appeal against the orders but the revision petitioner/tenant did not prefer any appeal, The petition for eviction was being filed without prejudice to the rights of the respondent to get any enhanced amount of fair rent. The tenant had always been in persistent default in the payment of rent. There was an earlier petition for eviction filed against the tenant on the ground of wilful default and the same was pending before this Court in revision at the time of filing the eviction petition. The tenant had not paid the rent for September and October, 1989. He started depositing the rent at Rs.90 per month from December, 1989. On 17.9.1991, the landlord issued a notice apprising the tenant of the fact about his default in the payment of rent and also informing him that he was liable to pay rent at the rate of Rs.155 per month from 28.11.1989 itself. The tenant replied on 5.10.1991 denying the default. He did not pay the difference between the rent already paid and the fair rent fixed by the courts as applicable from 28.11.1989, As on the date of filing of the petition after giving credit to the payments made by the tenants there was an amount of Rs. 860 payable by the tenant. The non-payment by the tenant was deliberate and contumacious. Inspite of specific notice dt.17.9.1991, he had defaulted to pay the correct rent and therefore liable to be evicted.
3. The tenant filed a counter to the following effect:
It was false to say that he had always been persistently defaulting in payment of rent. It was only the landlord, who was harassing him in all possible ways. Earlier eviction was sought on the ground of wilful default. It was dismissed. Appeal by the landlord was also dismissed and the matter was pending in the High Court. Similarly, against the order of the Rent Controller, fixing the fair rent, an appeal was filed which was also dismissed. The landlord illegally disconnected the electricity connec-tion and the tenant had to file RCOP No.61 of 1989 for restoration, which was allowed by the Rent Controller on 4.11.1991 and the appeal by the landlord in RCA No.1/91 was also dismissed on 30.9.1991. The present petition for eviction was yet another attempt by the landlord to harass the tenant. Till the date of order in RCOP No.66 of 1989, the entire rent had been paid or deposited at the contractual rate of Rs.90 per month and eversince the date of the order in the fair rent petition, the tenant had been paying Rs.155 per month. There was no default much less wilful default. So far as the non- payment of the difference between the contractual rent and the fair rent from the date of the petition till the date of the order was concerned, it could not be construed as wilful default and no petition for eviction could be filed for the arrears of the enhanced rent. Again, when the matter is pending in the High Court, a second petition for eviction would not lie. The application was liable to be dismissed.
4. The learned Rent Controller found that there was no wilful default and dis-missed the application.
5. However, the Appellate Authority agreed with the contention on behalf of the landlord set aside the order of the Rent Controller and ordered eviction.
6. It is as against this the present C.R.P. has been filed.
7. Mr. S.K.Rakunathan, learned counsel for the revision petitioner submitted that the proceedings were initiated by the landlord for eviction of the tenant on the ground of alleged default in the payment of difference between the contractual rent and the fair rent. The legal position was that the landlord would not be entitled to hold it against the tenant and only on 1.8.1996. In J.Visalakshi Ammal v. T.B.Sathya Narayana, 1996 (2) L.W. 849, a Bench of this Court over-ruled the earlier decisions of this Court in Ranganathan v. M.Suri, 1987 (100) L.W. 708, and Nelson v. Ranganathan Mudaliar, and held that in a case where a certain amount becomes due from the tenant as a result of the fair rent being fixed at a higher figure than the agreed rent, the failure to pay the difference between the fair rent and the agreed rent will attract the provisions relating to wilful default unless the tenant shows sufficient cause to the contrary and therefore the tenant in the instant case cannot be held to have committed wilful default and that in any event the tenant having paid the difference in the rent for the relevant period during the pendency of the C.R.P. cannot be held to have committed wilful default.
8. The learned counsel also relied on two judgments, of the Supreme Courts namely, (1) Padmakar v. Madhukar, (1995) 2 SCC 537, and (2) Rangarao v. Kamlakant 1995 Supp (1) SCC 271. in support of his contentions.
9. Mr. K.Kannan, learned counsel for the landlord/respondent, submitted that the conduct of the tenant in the instant case was unpardonable that he had committed wilful default, that the decision of the Bench will squarely apply to the facts of this case.
10. The Learned counsel for the landlord/respondent pointed out that as early as on 17.9.1991 immediately after the fixation of fair rent by the Rent controller in RCOP 66 of 1989 on 27.8.91, the landlord had called upon the tenant to pay the fair rent fixed by the Rent Controller and the tenant chose to reply on 5.10.1991 under Ex.A.28, admitting his liability but; saying that he need not pay. The learned counsel also submitted that even before this Court the tenant persisted by not paying the rent till a direction was given by Padmanabhan, J, to pay the amount due and this conduct also would clearly show the contumacious conduct of the tenant and therefore that no exception could be taken to the conclusion reached by the Appellate Authority.'
11. It is a matter of record that the fair rent was fixed on 27.8.1991 at Rs.155 per month. It was to take effect from the date of the petition for fixation of fair rent, namely, 28.11.1991. So far as the tenant is concerned, he did not file any appeal. The order fixing the fair rent at Rs.155 became final on 27.8.1991 so far as he was concerned. No doubt, the landlord had taken the matter on appeal and lost but once it had become final so far as the tenant was concerned unless he gave a proper explanation for not complying with the obligation to pay the fair rent, the decision by the Bench would operate. It is in this connection that the counsel for the tenant/revision petitioner Mr.Rakunathan relied on the judgment of the Supreme Court in Padmakar v. Madukar, 1995 (2) SCC 537. The case before the Supreme Court was that the tenant had applied for fixation of fair rent, but, he did not pay even the admitted rent during the pendency of the petition for fixation of fair rent. It was contended on his behalf that so long as the application for fixation of fair rent was pending, unless and until the same was finally disposed of, there was no obligation on his part to pay even the contractual rent. This contention was rejected by the Supreme Court and the Supreme Court observed -
"We are unable to appreciate this contention. As rightly held by the courts below at least if the appellant-tenant had paid rent at the rate of Rs.35 something could be said in his favour. Even that he had successfully denied to himself by his obstinacy in contending till the application for fixation of fair rent is finally disposed of there was no necessity for him to pay the rent. If this is the stand of the tenant, the conclusion is inescapable that he has been rightly declared a habitual defaulter."
12. The learned counsel on the basis of the above ruling contended that the decision relating to fair rent had not become final and therefore the tenant was justified in not paying the fair rent for the period from the date of the petition, till the order by the Rent Controller. It has already been noticed that so far as he was concerned the fair rent at Rs.155 had become final. He did not question that, He had accepted that as the fair rent payable by him. His not having paid the difference notwithstanding his having been called upon to pay the said difference by a notice by the landlord is nothing short of sheer, obduracy. I do not think that the Supreme Court decision helps him in any way.
13. The other decision relied on by the learned counsel in Rangarao v. Kamlakant, 1995 Supp (1) SCC 271, is for the proposition that the judgment of the Court cannot have retrospective operation. In that case the landlord/appellant fixed a suit for possession which ended in a compromise decree. Subsequently, the notification exempting certain categories of buildings from the purview of C.P. & Berar Letting of Houses and Rent Control Order, 1949, issued under clause 30 of the said order came to be struck down on the ground that it was violative of Article 14 of the Constitution. When the decree was sought to be executed, the tenant albeit the compromise raised an objection that the decree became unexecutable since the civil Court had lost jurisdiction to pass an order of eviction in view of the decision. That objection, although overruled by the lower Courts, was upheld by the High Court. The appeal by, the landlord was allowed by the Supreme Court holding that -
" When the compromise memo fruitioned into a decree on 3.1.1985, the civil court had every jurisdiction to pass such a decree. It is true the notifi-cation issued under clause 30 of C.P. and Berar Letting of Houses and Rent Control Order, 1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19.6.1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3.1.1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (Legislature as well). The courts 'do not: have such power, if that be so, the High Court had clearly gone wrong in holding that the decree on the date of execution is a nullity."
From this, the learned counsel wanted to contend that if at all there could be anything to be put against the tenant it could be only from the date of the decision in Visalakshi Ammal v. Sathyanarayana, 1996 (2) LW 849 which was on 1.8.1996.
14. In Lakshmi Narayan Guin v. Niranjan Modak, it has been held by the Supreme Court 'after referring to a number of other judgments, " That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munishi, , which was followed by this . Court in Mula v. Godhu, . We may point out that in Dayawati v. Inderjit, this Court observed:
If the new law speaks in language, which, expressly or by clear-intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have - regard to an intention so expressed and the court of appeal may give effect to such a law even after the judgment of the court of first instance. Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh, where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal, ILR 1902 (26) Mad. 91 (F.B.) by Bash yam Ayyangar.J, that the hearing of an appeal was, under the processual law of this country in the nature of a re-hearing of the suit."
15. In my view, the law, as laid down by the Bench in Visalakshi Ammal's Case, 1996 (2) LW 849 must be deemed to have been the law on the date the fair rent was fixed and the liability to pay at the rate fixed by the Court arose. The conduct of the tenant can only be said to be contumacious. Even otherwise, the tenant persisted and refused to pay the difference even after the filing of the civil revision petition by him in this Court. He condescended to pay the same only after specific direction by this court as a condition for stay, In these circumstances, I have absolutely no hesitation in holding against the tenant that he has committed wilful default in the payment of the rent and he is liable to be evicted. The order of the Appellate Authority cannot therefore be stated to be erroneous. It does not call for any inference and the same is therefore confirmed.
16. The C.R.P is dismissed. The revision petitioner will have four months time to quit and deliver vacant possession of the property subject to his filing an affidavit of undertaking with the usual default clause within a period of two weeks from today. No costs. Consequently, CMP No.16316 of 1996 is also dismissed.