Madras High Court
Ayyasamy vs Sivasamy on 2 April, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.04.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).1238 of 2012 and M.P.No.1 of 2012 Ayyasamy ... Petitioner vs. Sivasamy ... Respondent Civil revision petition preferred against the judgment and decree dated 18.08.2011 made in RCA No.12 of 2010 on the file of the II Additional Subordinate Judge (Rent Control Appellate Authority) Coimbatore confirming the judgement and decree dated 01.02.2010 made in RCOP No.233 of 2005 on the file of the learned Rent Controller/Principal District Munsif, Coimbatore. For Petitioner : Mr.B.Manoharan For Respondent : Mr.K.Kalyanasundaram ORDER
Animadverting upon the order dated 18.08.2011 passed in RCA No.12 of 2010 by the learned II Additional Subordinate Judge (Rent Control Appellate Authority) Coimbatore confirming the judgement and decree dated 01.02.2010 passed in RCOP No.233 of 2005 by the learned Rent Controller/Principal District Munsif, Coimbatore, this civil revision petition is focussed.
2. Heard both sides.
3. Synoptically and succinctly, the germane facts absolutely necessary for the disposal of this revision would run thus:
The landlord/respondent herein filed RCOP No.233 of 2005 under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act on the ground that the revision petitioner/tenant committed willful default in paying the rent and the premises also was required for his son's residential occupation as he got married; whereas, the revision petitioner/tenant resisted the application on the ground that he has been paying regularly the rent as per the direction of the landlord with effect from 25.01.2006 and the alleged requirement for personal occupation of the landlord's son is not a genuine one.
Accordingly, he would pray for the dismissal of the revision petition.
4. During enquiry, the landlord examined himself as P.W.1 and Exs.P1 to P6 were marked. The tenant examined himself as R.W.1 and Ex.R1 was marked.
5. Ultimately, the learned Rent Controller ordered eviction on both the grounds relied on by the landlord. Being aggrieved by and dissatisfied with the said order, the tenant preferred the appeal for nothing but to be dismissed, confirming the order of the Rent Controller.
6. Challenging and impugning the orders of both the Courts below, this revision has been focussed on various grounds.
7. The learned counsel for the petitioner placing reliance on the grounds of revision, would put forth and set forth his arguments which could tersely and briefly be set out thus:
(a) There is nothing to indicate and exemplify that there is willful default on the part of the tenant in depositing the rent. The agreed rent was only Rs.1,000/- per month, whereas, the landlord expected the tenant to deposit a sum of Rs.2,000/- per month, which cannot be countenanced as willful default on the part of the tenant.
(b) The revision petitioner is carrying on his vegetable vending business in the premises and in such a case, all of sudden, he cannot be made to vacate the premises. Both the Courts below failed to take into account all the relevant facts involved in this case.
8. In a bid to torpedo and pulverise and make mince meat of the arguments as put forth on the side of the revision petitioner/tenant, the learned counsel for the respondent/landlord, would pilot his arguments, the gist and kernel of them would run thus:
(a) The admitted facts are to the effect that the tenant did not pay rent for six months together and thereafter, paid in one lumpsum the arrears, which the lower Court correctly observed and commented upon.
(b) The lower Court also applied the ingredients relating to personal occupation as contemplated under Section 10(3)(a)(i) and decided the case, warranting no interference in the revision.
9. The points for consideration is as to:
(1) Whether the Courts below without any basis held that the tenant committed willful default in paying the rent?
(2) Whether the Courts below failed to consider that the landlord was not genuinely in need of the demised premises for the personal occupation of his son?
(3) Whether there is any perversity or illegality in the order of both the Courts below?
10. A mere poring over and perusal of the orders of both the Courts below, would exemplify and demonstrate that indubitably and axiomatically, the tenant did not pay the rent regularly. No doubt with the permission of the landlord, the tenant started depositing the rent with effect from 25.01.2006; however the lower Court in its order after analysing the records, gave a finding to the effect that notwithstanding the fact that the tenant started depositing the rent from January 2006 onwards, yet between the period April 2009 and November 2009, he did not deposit the rent, however in one lumpsum during the month of November 2009, the tenant deposited Rs.7,000/- (rupees seven thousand only). The unexplained delay in paying the rent certainly would attract the conduct of the defendant being labelled or dubbed as willful.
11. Over and above that, the learned counsel for the landlord also would point out that as on date, arrears of rent to a tune of Rs.2,50,000/- is due payable by the tenant to the landlord. He would also without further contradiction highlight the fact that the landlord filed RCOP No.233 of 2005 for fixation of rent and in that, monthly rent was fixed at Rs.2,800/- payable by the tenant to the landlord with effect from the date of RCOP No.91 of 2006, so to say 05.06.2006.
12. The learned counsel for the tenant could not contradict such a statement. Be that as it may, even the very non deposit of the rent between the month of April 2009 and November 2009, in my considered opinion would amount to willful default, as correctly observed by the Rent Controller and confirmed by the appellate authority.
13. In this connection, I would like to fumigate my mind with the following decision:
(2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS.
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 full 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 wiful 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. As such no interference with the finding of both the Courts below relating to willful default in payment of rent pending the proceedings, to the landlord, would arise.
14. The Rent Controller as well as the appellate authority has given the finding to the effect that the landlord is in requirement of the demised premises for the personal occupation of his son, as he got married recently. There is no contra evidence available to show that such requirement is not genuine. No doubt it appears the landlord is occupying in the same vicinity a building of his own and there is nothing to show that there is any other vacant building available for the landlord to accommodate his son other than the said premises. The learned counsel for the tenant would submit that there is one other tenant occupying another portion of the building in which the revision petitioner- tenant is occupying a part. It is a common or garden principle of Rent Control law that a landlord is having the right to choose any portion of the building for his personal occupation and the tenant concerned who is proceeded against, cannot dictate terms to the landlord.
15. In this connection, I would like to fruitfully refer to the following decisions:
(i) (2001) 8 SUPREME COURT CASES 110 S.R.BABU V. T.K.VASUDEVAN AND OTHERS, certain excerpt from it would run thus:
"10. Sub-Section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) reads thus:
"11.(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use."
11. A perusal of sub-section (8) makes it clear that to invoke this sub-section the landlord must show that (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub-section (3) and sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act.
14. In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters."
(ii) 2007( 3) CTC 152 RASI SILKS BY ITS PARTNER K.ARUNACHALAM VS. RASI SILKS T.A.VENKATACHALAM, an excerpt from it would run thus:
"12. . . . . . Holding that the crucial aspect is a special instance in matters arising under Section 1-(3)(c) of the Act and that there should be a categorical finding by the statutory authorities on hardship that may be caused to the Tenant by granting it, will outweigh the advantage to the landlords in K.A.Loganatha Naicker v. S.R.Balasundaram Mudaliar, 1974(2) MLJ 256, it was held thus:
"It is imperative for the authorities in cases arising under Section 10(3)(c) of the Tamil Nadu Act (XVIII of 1960), to give specific finding whether the hardship the tenant is likely to suffer would outweigh the advantage to the landlord or vice versa. Unless this aspect is noticed and adjudged upon by the statutory authorities, there is no complete enquiry as contemplated in respect of the petitions arising under Section 10(3)(c) of the Act."
21. Contention of Tenant is that the landlords can expand the hotel business on the open space available, which is abutting the premises. In his evidence, P.W.1 has stated the open space cannot be utilised for running the hotel. It is well settled that the landlord can choose the portion required and it is not for the Tenants to dictate terms. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999(1) MLJ 233, this Court has held that the landlord can choose the portion required and it is not for the tenant to dictate terms. It is not the object of the provision to weigh the hardship of the Tenant as against the test of the landlord on a delicate scale, giving the benefit of the slight tilt in favour of the tenant."
16. As such in commensurate with the dictum as found enunciated in the aforesaid precedents, both the Courts below decided the matter, warranting no interference in this revision. There is no perversity or illegality in the order passed by both the Courts below. In the result, I could see no merit in this revision and accordingly, the same is dismissed. However taking into account the fact that the tenant has to find an alternative accommodation, I am of the view that granting six months' time would meet the ends of justice. Accordingly, six months' time is granted from this date to the revision petitioner/tenant to hand over possession to the respondent/landlord, subject to payment of arrears of rent. An affidavit shall be filed to that effect by the revision petitioner within a period of fifteen days from this date. No costs. Consequently, connected miscellaneous petition is closed.
gms To
1. The II Additional Subordinate Judge (Rent Control Appellate Authority) Coimbatore.
2. The Principal District Munsif (Rent Controller), Coimbatore