Madras High Court
P.M.S.Muhammad Suhail vs Subramanyan on 17 April, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (NPD)No.2632 of 2000
P.M.S.Muhammad Suhail ... Petitioner.
-Vs-
Subramanyan. ... Respondent.
Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, against the judgment and decree
dated 20.4.1999 and made in R.C.A.No.68 of 1991 on the file of the Rent
Control Appellate Authority (Sub Court), Tuticorin, confirming the order and
decretal order dated 22.10.1991 made in R.C.O.P.No.5 of 1990 on the file of
the Rent Control (District Munsif) Court, Srivaikundam.
!For petitioner : Mr.M.I.Meera Sahib.
^For respondent : Mr.J.R.Prabhakaran
:O R D E R
The revision petitioner is the unsuccessful landlord before the Rent Controller and the Rent Control Appellate Authority in getting an order of eviction on the ground of wilful default in payment of rent and own use and occupation.
2. The revision petitioner/landlord filed the Rent Control Original Petition for eviction against the respondent/tenant in respect of the petition premises bearing door Nos.20 and 20A, Arampalli Street, Kayalpatnam stating that he is the owner of the petition premises and also adjacent shop bearing door No.19 managed by his paternal uncle M.S. Sheik Shamsudeen, who brought him up, and his paternal uncle as his guardian was collecting the rent. The res pondent herein is the tenant in respect of the petition premies on a monthly rent of Rs.110/- and since he defaulted in payment of rent from September, 1988 to February, 1989, a letter was sent by his uncle by registered post to the respondent herein to pay the arrears of rent from September, 1988 to February, 1989 in the Bank of Madura Ltd., Kayalpatnam in the account of C/D No.153 within three days and further requested him to pay the future rental amount in the said account on or before 5th of every English calendar month and in case of default, he will be liable for eviction. On receipt of the said letter, the respondent herein paid the arrears on 27.3.1989 and also informed the revision petitioner's uncle at Madras. Even thereafter, the respondent herein has committed default in payment of rent from March, 1989 to December, 1989 which amounts to wilful default. The respondent herein was also put on notice on 9.1.1990 setting out the facts and his supine indifference in payment of rent and requesting the respondent herein to hand over vacant possession on 1.2.1990 and that the petition premises is also required for his personal occupation as he has no house of his own. The respondent herein replied on 12.1.1990 requesting the revision petitioner to receive the arrears by issuing a receipt or otherwise he will deposit in the bank as before. The respondent herein also converted the premises bearing door No.20A as a residential portion without the permission of the revision petitioner. The respondent herein was also informed to pay the rental amount in the bank account mentioned above. The revision petitioner came to know from the bank about the non-payment of rent from March, 1989 till December, 1989. The petition premises bearing door Nos.20 and 20A are bona fide required for effecting necessary alterations for residential purposes of the landlord and since he also intends to start a business in building door No.19 in respect of which also he has filed a petition for eviction.
3. The petition was resisted in the counter admitting the quantum of rent at Rs.110/- per month. It is further stated that since the revision petitioner refused to receive the rental amount of Rs.100/- on 5.7.1985 and also the amount sent by money order, the revision petitioner's agent collected the rental amount in lump-sum, viz., Rs.1,200 /- on 26.1.1986, Rs.1,200/- on 31.3.1986 and Rs.400/- on 1.4.1987 and the agent of the revision petitioner was in the habit of collecting the rent in lump-sum. Even on earlier occasions the sum of Rs.125/- was collected towards the rent for the months of August to December, 1970 by the revision petitioner's agent in respect of the petition premises bearing door No.20 and the sum of Rs.50/- was collected towards the rent for the months of August to December, 1970 in respect of the petition premises bearing door No.20A. The revision petitioner was collecting the rental amount in lump-sum till a notice was caused in the year 1989. As per reply letter dated 27.3.1989, the rent for the months of September, 1988 to March, 1989, viz., Rs.770/- was deposited in the bank account of the revision petitioner. The rent for the months of April to December, 1989 was also deposited in the bank account of the revision petitioner also informed in the notice dated 12.1.1990. The requirement of the petition premises sought for residential purpose is without bona fide. Even the revision petitioner gets married, as per the custom in Kayalpatnam, the revision petitioner is to reside only in the house that will be given to him by his in-laws.
4. Before the Rent Controller, the revision petitioner/landlord examined himself as P.W.1 and marked Exs.A-1 to A-9 and the respondent/ tenant examined himself as R.W.1 and marked Exs.B-1 to B-7. The learned Rent Controller considering such evidence, accepted the case of the tenant that it was in practice to pay the rent collectively and in lump-sum which was received without protest and was accepted by P.W.1 in his evidence and inasmuch as the rental amount claimed was also deposited in the bank under Exs.B-6 and B-7, in the said circumstances, the tenant has not committed default wilfully in payment of rent as claimed for the months of March, 1989 to December, 1989 and further recording finding that the requirement of the petition shop for residential purpose is without bona fide, in that the petition premises is non-residential premises and so dismissed the Rent Control Original Petition. In the appeal, the learned Rent Control Appellate Authority confirmed the order of the learned Rent Controller in dismissing the Rent Control Original Petition. Such concurrent finding of the learned Rent Controller and the learned Rent Control Appellate Authority is under challenge in this Civil Revision Petition.
5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.
6. The learned counsel for the revision petitioner/landlord argued that since the rental amounts were received in lump-sum previously, the tenant cannot continue to pay the rent as and when he chooses to pay and collectively. In this regard, the ned counsel for the revision petitioner pointed out that despite the letter Ex.A-6 dated 2 2.3.1989 was sent requesting the tenant to pay the rent in his bank account on or before 5th of every month, the rent was not paid then and there and every month. As regards the requirement of the petition premises for own use and occupation for residential purpose of the landlord, the learned counsel for the revision petitioner/landlord contended that he intends to start a business in the shop bearing door No.19, for which a separate petition was filed seeking eviction and that to reside in Kayalpatnam he is in need of the petition premises for his residential purpose. The learned counsel for the revision petitioner/landlord relied on the following decisions:-
(1) Lingambhotla Subbayya vs. - The Subordinate Judge, Vijayawada and another reported in 1951 M.L.J. 514, in which, a Division Bench of this Court has held:-
"Where in fact there is a default in the payment of rent, it would be wrong to hold that default by itself cannot be regarded as a valid ground to eject a tenant in cases where the tenant proves that by long practice the house-owner did not insist on regular monthly payment of rent. There cannot be an agreement under which rent is payable at irregular intervals. Though a landlord may not have been insisting on regular payment and was accepting without protest arrears of rent which had accumulated, if he chooses to apply under section 7 of the Madras Buildings (Lease and Rent Control Act, he will be entitled to an order of eviction, if he proves there has been a default as contemplated by the section."
(2) Thayammal vs. - K.Subramaniam reported in 1989-I M.L.J. 407, in which this Court has held at page 408:-
"The fact that the tenant sent the rent as soon as a notice was issued to her with reference to the wilful default will not enable the tenant to plead that there was no wilful default."
(3) Manickkampillai vs. - A.Sakuntala and another reported in 2002
-1 Law Weekly 796, in which this Court held:-
"Refusal on the part of landlord to receive is not an excuse for tenant for not paying admitted rent. Conduct of tenant, held, amounted to supine indifference."
7. The learned counsel for the respondent/tenant argued that the agent of the revision petitioner was in the habit of collecting the rent in lump-sum till the notice Ex.A-6 caused on 22.3.1989 by the paternal uncle of the revision petitioner/landlord and as per the reply Ex.B-4 dated 27.3.1989, the rent for the months of September, 1988 to March, 1989, viz., Rs.770/- was deposited in the bank account of the landlord and then the rent for the months of April, 1989 to December, 1989 was also deposited in the bank account o f the landlord as informed under the notice Ex.A-2 dated 12.1.1990 and as such, the tenant has not committed default, much-less wilful default in payment of rent for the months of March, 1989 to December, 1989. With regard to the case of the landlord that the petition premises required for residential purpose, according to the tenant, such requirement is without bona fide, in view of the fact that the landlord, after his marriage, as per the customs prevalent in Kayalpatnam, is to reside only in the house that will be given to him by his in-laws. The learned counsel for the respondent/tenant placed the following decisions:-
(1) Abdul Hameed vs. - M.Sultan Abdul Kader reported in 1996-2 Law Weekly 525, in which this Court held:-
"The Appellate Authority failed to appreciate the peculiar circumstances of this case and the conduct of the landlord in receiving the rent in lump-sum for four months or six months. Though in the present case, the default was for 12 months, immediately on the filing of the petition, the entire arrears have been paid. The trial court exercised its discretion correctly and came to the conclusion that the non-payment of rent was only due to the practice, which existed between the landlord and the tenant. The petitioner-tenant was not given to understand at any time either overtly or covertly that the respondent-landlord is going to utilise this situation as a ruse to get eviction. The petitioner deposited the entire arrears even at the first instance without the trial court granting any reasonable time. This important fact was not taken note of by the Appellate Authority. The order of the Appellate Authority, which is impugned in this revision, is, therefore, liable to be set aside and the eviction ordered cannot, therefore, stand."
(2) Mohammed Arif and 2 others vs. - K.P.R.Jafarullah reported in 1998-2 Law Weekly 610, in which this Court held:-
"In view of the above dictum (in 1996-2 L.W. 525 (Abdul Hameed vs.
- Sultlan Abdul Kader)) and on the basis of the facts the findings of the authorities below that the tenants had committed default in payment of rent wilfully cannot be sustained in law. So, in this regard the orders of the courts below cannot be sustained and they are hereby set aside."
(3) M/s.Chordia Automobiles vs. - S.Moosa and others reported in 2 000(1) CTC 742, in which in paragraph 8, the Apex Court has ruled:-
"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 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 provision of Section 10(2). The dispute of rent admittedly was genuine. Further, we find 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."
8. The Rent Control Original Petition was filed setting out the clear case that the tenant committed default in payment of rent from March, 1989 to December, 1989 that despite the request made as per the letter of the landlord's paternal uncle under Ex.A-6 dated 22.3.1989 to deposit the rent every month in the account of the landlord as mentioned in the said letter, the tenant not deposited the rent every month regularly. As per letter Ex.B-4 dated 27.3.1989 by way of reply to the letter Ex.A-6, the tenant has informed that he would deposit the rental amount for the months of September, 1988 to March, 1989, viz., Rs.770/- in the bank account of the landlord as informed under Ex.A-6. As per the counter-foil Ex.B-6 dated 27.3.1989, it is seen that the tenant has deposited a sum of Rs.770/- on 27.3.1989 to the account of the landlord. The landlord caused lawyer notice under Ex.A-1 dated 9.1.1990 stating that the tenant has not deposited the rental amount for the months of March, 1989 onwards in the account of the landlord as directed under Ex.A-6 dated 22.3.1989 and the tenant has committed default wilfully in payment of rent for the months of March, 19 89 to December, 1989. The tenant replied under Ex.A-2 dated 12.1.199 0 requesting the landlord or the power of attorney agent to come and collect the rent in person under receipt, failure of which, he will deposit the rent for the months of April, 1989 to December, 1989 for 9 months, viz., Rs.990/- in the bank account of the landlord. As per counter-foil Ex.B-7 dated 28.1.1990, the tenant has deposited a sum of Rs.990/- towards the rent for the months of April, 1989 to December, 1989 in the account of the landlord. It is seen from Ex.B-1 dated 26.11.1988, Ex.B-2 dated 31.3.1986 and Ex.B-3 dated 1.4.1987 that the tenant paid the rental amount in lump-sum and it was accepted by the landlord's paternal uncle as power of attorney. But even after the notice under Ex.A-6 dated 22.3.1989 that the rent is payable by the tenant on or before 5th of every month and that he failed to pay the rent for 6 months from September, 1988 to February, 1989 and requested the tenant to pay the arrears of rent in the account No.153, Madura Bank, Kayalpatnam Branch, the tenant paid in lump-sum i.e. Rs.770/- on 27.3.1989 as per Ex.B-6 in the Account No.153, Bank of Madura Ltd. The duty is cast upon the tenant after such clear notice under Ex.A-6 that the rent is to be paid every month, but again the tenant failed to pay the rent for the months of April, 1989 to December, 1989 and paid in lump-sum i.e., Rs.990/- in the bank account only on 28.1 .1990 under Ex.B-7 after notice Ex.A-2 dated 12.1.1990. Though it can be said that it was within two months after causing of the notice under Ex.A-2, the arrears of rent for the months of April, 1989 to December, 1989 was paid under Ex.B-7 on 27.1.1990 and so there have been supine indifference and callousness on the part of the tenant in depositing the rent, as such, in the bank account.
9. Further, it is not averred that the tenant was not informed as to how the rent is payable as per Ex.A-6 dated 22.3.1989. The paternal uncle and power of attorney agent of the landlord has clearly informed the tenant to pay the rental amount in the bank account of the landlord and in fact, the tenant also paid Rs.770/- under Ex.B-6 on 27.3.1989 towards the rent for the months of September, 1988 to March, 1989, but still as if he was not informed as to how the rent is to be paid he sent reply under Ex.A-2 dated 12.1.1990 requesting the power of attorney of the landlord to come and collect the rental amount in person under receipt and failure of such, he will deposit the rent in the bank account of the landlord for the months of April, 1989 to December, 1989, just to get time and he deposited a sum of Rs.990/- towards rent under Ex.B-7 only on 28.1.1990. The tenant deliberately and intentionally committed such default in payment of rent for the months of April, 1989 to December, 1989 and such default amounts to wilful, in that it is clear that the tenant deposited the arrears of rent as such only with the intention not to pay the rent regularly. Therefore, the landlord has made out the case for eviction on the ground of wilful default in payment of rent for the months of March, 1989 to December, 1989 by the tenant.
10. With regard to the requirement of the petition premises bearing door Nos.20 and 20A bona fide for the residential purpose, the case set out in the petition is that the landlord is also owning adjacent premises bearing door No.19 occupied by a tenant and to evict him he already filed a petition and by making s uitable alterations in the petition premises for the residential purpose he will use the same. In the notice Ex.A-1 dated 9.1.1990, it is stated that the premises is required for own use and occupation of the landlord for residential purpose, in that he is not owning any other residential building in Kayalpatnam and that he is residing only in the house of his sister and by doing business in the adjacent premises bearing door No.19, after vacating the tenant in that premises. The landlord as P.W.1 has stated that the premises bearing door No.20 is used for non-residential purpose and the premises bearing door No.20A is used for residential purpose and both are in dilapidated condition. It is further his evidence that he has obtained permission and sanctioned plan from the panchayat to put up new construction after demolishing the petition premises under Exs.A-3 and A-4 and he does not own any other residential premises in Kayalpatnam. The Rent Control Original Petition is not filed seeking the petition premises for the purpose of demolition and reconstruction. The requirement sought is only for own use and occupation for the residential purpose of the landlord.
11. Though in the Rent Control Original Petition, it is not mentioned that the eviction is sought under Section 10(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act without stating whether it is under Section 10(3)(a)(i) or under Section 10(3)(a)(iii) of the Act, in paragraph 5 of the petition, it is stated that the petition premises is sought for the residential purpose after effecting necessary alterations, since he has no house on his own for living and since he intends to start a business in the adjacent premises bearing door No.19 in respect of which, already an eviction petition has been filed and as such, the requirement is under Section 10(3)(a)(i) for residential purpose.
12. It is admitted by the tenant in his evidence as R.W.1 that the landlord is residing in the house of his sister at Kayalpatnam and often he goes over to Madras. Further, it is his evidence that previously, the petition premises was both for residential or nonresidential. Therefore, it is clear that by making suitable alterations, the petition premises can be utilised for residential purpose. R.W.1 though stated in his evidence that the landlord also owns house at Ambalamarakayar Street at Kayalpatnam, no particulars have been furnished and in this aspect even the landlord as P.W.1 has not been cross-examined as to whether he owns a house at Ambalamarakayar Street at Kayalpatnam. Therefore, the requirement of the petition premises by the landlord for residential purposes is very much bona fide and on that ground also, the landlord is entitled for eviction. The learned Rent Control Appellate Authority has not recorded correct and proper finding on the grounds sought for eviction and therefore, the judgment and decree made by the learned Rent Control Appellate Authority are to be set aside.
13. In the result, this Civil Revision Petition is allowed with cost, ordering eviction on the ground of wilful default in payment of rent and also on the ground of own use and occupation and setting aside the judgment and decree dated 20.4.1999 made in R.C.A.No.68 of 1991 by the learned Rent Control Appellate Authority.
Index: Yes Internet:Yes ts.
To
1) The Subordinate Judge, Tuticorin.
2) The District Munsif, Srivaikundam.
3) The Section Officer, V.R. Section, High Court, Madras.
S.SARDAR ZACKRIA HUSSAIN,J.