Madras High Court
M. Arumugham vs Mrs. Alagammai Achi on 10 February, 1999
Equivalent citations: (1999)2MLJ552
ORDER K. Sampath, J.
1. The civil revision petition arises under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act 18 of 1960) as amended by Act 23 of 1973, hereinafter referred to as the Act. The tenant is the revision petitioner. The respondent landlady initiated proceedings under Section 10(2)(1) of the Act for his eviction alleging that he had committed wilful default in the payment of rent from January, 1995 till January, 1996 and had become liable to be evicted. Her case as set out in the R.C.O.R. No. 7 of 1996 before the Rent Controller, Karaikudi was as follows:
The revision petitioner became a tenant under her in respect of the property belonging to her bearing Door No. 82, Muthupattinam II Street, Karaikudi Nagar for a monthly rent of Rs. 60 computed according to the English calendar month. He was a chronic defaulter. He was paying rent till October, 1992. Thereafter taking advantage of her helplessness started creating evidence as if he had sent the rents, he filed R.C.O.P. No. 25 of 1993 purporting to be under Section 8(5) of the Act and obtained an exparte order on 15.2.1994. Till December, 1994 he was accmulating monthly rent and depositing the same into the court and thereafter from January, 1995 till January, 1996 he wilfully did not deposit the rent into court. This he did with ulterior motives and the eviction proceedings were therefore, necessitated.
2. The revision petitioner resisted the eviction proceedings inter alia contending as follows:
The averments in the eviction petition were all imaginary and false. The order in R.C.O.P. No. 25 of 1993 should be read as part and parcel of his objections. The power of Attorney Holder with a view to purchase the property for a low price had instigated the filing of the eviction petition. The revision petitioner had filed O.S. No. 264 of 1993 before the District Munsif Court, Devakottai and obtained a decree to the effect that he should not be evicted, from the properties, subject matter of the proceedings except by due process of law. A look at the proceedings in that suit would disclose the utter falsity of the claim of the respondent. The revision petitioner had been making arrangements for depositing the rent into court every month through his lawyer. In the meantime the rent control jurisdiction relating to Karaikudi till then functioning at Devakottai was transferred to the District Munsif Court, Karaikudi. But the records were not sent from Devakottai to Karaikudi and when the revision petitioner and his counsel made enquires, they were told that only after the receipt of the records the rent deposits could be made. The respondent had not taken any steps to withdraw the amounts in deposit. The revision petitioner had always been ready to pay the rent regularly. He had not wilfully defaulted in paying the rent. He was also ready to deposit the arrears, he had also filed a separate application for permission to deposit. The eviction proceedings had been initiated with ulterior motives to throw the revision petitioner out of the property and it was liable to be dismissed.
3. The learned Rent Controller accepted the case of the respondent and held that the revision petitioner had committed wilful default in the payment of rent, that he had not deposited the rent due for the period March, 1995 to January, 1996, till the filing of the eviction petition, that he had deliberately and wilfully not paid the monthly rent to the respondent, that he had committed wilful default. So holding by his order dated 30.4.1998 the learned Rent Controller, Karaikudi ordered eviction. He granted three months time to the revision petitioner to quit and deliver vacant possession to the respondent. The appeal in R.C.A. No. 10 of 1998 before the Appellate Authority (Subordinate Judge, Devakottai) by the revision petitioner was also dismissed on 22.10.1998 confirming the decision of the Rent Controller, Aggrieved the present civil revision petition has been filed.
4. The respondent had entered appearance through counsel and by consent the main civil revision petition itself was heard. Mr. Sundar, learned Counsel for Mr. V.P. Raju argued that originally the revision petitioner had filed an application for depositing the rent into court. The respondent/landlady remained exparte and an order was passed permitting deposit. The revision petitioner also had been depositing the rent regularly. But in January, 1995 the jurisdiction of the court at Devakottai was taken away and given to the District Munsif's Court at Karaikudi. The revision petitioner was handicapped as neither of the courts would receive the deposit and after the respondent/landlady filed eviction petition, he made deposit for the left out months and that inasmuch as the landlady refused to notify the bank account or to receive the rent when sent by money order, the revision petitioner was compelled to file an application under Section 8(5) of the Act. The learned Counsel further submitted that even conceding without admitting that the revision petitioner had not deposited regularly into court, still having regard to the wording of Section 8(5) of the Act, the non-deposit of the rent regularly could not be construed as wilful default. At worst it could be termed as default and not as wilful default warranting order of eviction. The learned Counsel laid stress on the word 'may' and also relied on a Bench Judgment of this Court in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155.
5. Mr. S.V. Jayaraman, learned Senior Counsel appearing for Mr. M.S. Thiruvekatasamy, learned Counsel for the respondent submitted that the stand taken by the revision petitioner that because of the transfer of change of jurisdiction, he was disabled from depositing the rent regularly was factually incorrect. According to the learned Senior Counsel this would be evident from the certified copy of the lodgment schedule. His stand that from January, 1995 to January, 1996 he could not deposit because the case bundle had not been sent from Devakottai to Karaikudi was equally untenable as would be evident from the lodgment schedule itself. As regards the contention that the non-deposit pursuant to the order passed under Section 8(5) of the Act would not amount to wilful default, the learned Senior Counsel relied on the decision of Ratnam, J. as the Judge then was in K. Avinasilingam v. Hamsa and Anr. 1990 T.L.N.J. 108 : (1990) 1 L.W. 591 and the decision of S.S. Subramani, J., in S. Sundararajan v. S.A. Viswanatha Chetty and Anr. (1997) 2 L.W. 567. The learned Senior Counsel also pointed out that the rents for March, April and May, 1995 were deposited only on 26.7.1998 and this would constitute supine indifference in the payment of rent.
6. Having given my anxious consideration to the rival submissions, I am of the view that the stand taken on behalf of the respondent/landlady is entitled to acceptance. A perusal of the lodgment schedule would clearly show that for October, 1994 the rent was deposited in District Munsif Court, Devakottai on 2.2.1995. On the same date the rent for November, 1994 also was deposited. Again for December, 1994 to February, 1995 for a period of 3 months the deposit was made on 21.6.1995 in the District Munsif's Court, Devakottai. Thus factually the stand taken by the revision petitioner that because the case bundle had not come to Karaikudi from Devakottai precluded him from making the deposits from January, 1995 to January, 1996 cannot be accepted. The conclusion therefore to be reached is that there had been default in the payment of rent by the revision petitioner.
7. The next question to be considered is whether this could be termed to be wilful default. Mr. Sundar, learned Counsel for the revision petitioner submitted that the word employed in the section is 'may' and not 'shall' and therefore even assuming that the revision petitioner had not deposited the rent notwithstanding the order in his favour in the Section 8(5) application, it could not to be termed to be wilful default.
8. In Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, already referred to, the landlord refused to receive the rent sent by the tenant. The Bench observed that it was the landlord's fault that he did not receive the rent and held that he could not subsequently say that the tenant had not exercised his right given under Section 8 of the Act and therefore it must be taken that he had committed wilful default, the Bench observed that Section 8 provided that in case the landlord refused to receive the rent tendered by him, the tenant could call upon the landlord to name a bank where he could deposit it and if he failed to do so he could send it by money order and if even that money order was not received, he could deposit the rent before the Rent Controller. According to the Bench it was nowhere stated that if the tenant did not do that it would amount to wilful default. The Bench did not decide the question as to what would happen if after obtaining an order under Section 8(5) of the Act the tenant did not regularly deposit the rent.
9. This decision of the Bench has been referred to and distinguished by Ratnam, J., as the learned Judge then was in K. Avinasilingam v. Mamsa and Anr. 1990 T.L.N.J. 108 : (1990) 1 L.W. 591. The learned Judge accepted the argument advanced on behalf of the landlord in that case that in a case where an order for deposit of rent under Section 8(5) of the Act had been obtained and had not been complied with it would be nothing but a case of wilful default, as an order under Section 8(5) of the Act was intended only as a mantle of protection thrown on the tenant against his removability on the ground of wilful default and when default was committed in the deposit of rent even thereafter there could be no excuse whatever for non payment of rents as per the order under Section 8(5) of the Act. The learned Judge distinguished the said decision in the following words.
In that case, from the facts as set out therein, no order under Section 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant and the argument that Section 8 of the Act should have been resorted to by the tenant in order to save himself from the consequences of the commission of wilful default, it was observed that the failure of a tenant to resort to Section 8 of the Act to deposit the rents will not amount to wilful default on his part in payment of rents. That observation has no relevance whatever in a case like this, where an order under Section 8(5) of the Act had been obtained by the tenant and the rents had been deposited in accordance with that order.
10. The decision of the learned Judge has been referred to and followed by S.S. Subramani J. in S. Sundararajan, v. S.A. Viswanathan Chetty and Anr. (1997) 2 L.W. 567. In paragraph 13 of the judgment the learned Judge has observed that "When a tenant invokes the jurisdiction under Section 8(b) of the Act it is his duty to pay rent in court as and when it becomes due. Instead of actually paying the rent to the landlord, he gets discharged by depositing the rent in court. That means the court becomes agent of the landlord and gives the tenant a discharge."
11. The revision petitioner cannot take advantage of the word 'may occurring in Section 8(5) and say that the tenant is under no obligation to deposit the rent regularly after obtaining orders for deposit under Section 8(5). It has to be held that when once he avails of the provisions of Section 8(5) and obtains an order thereafter, it is his bounden duty to deposit the rent regularly. In the instant case it has been demonstrated that the revision petitioner had not done that and the authorities below have rightly held that the revision petitioner had committed wilful default in the payment of rent. One other aspect that has to be mentioned is that the revision petitioner deposited the rents for the months of March, April and May, 1995 on 26.7.1998, more than two years after the eviction petition was filed. Absolutely no explanation is forth coming for this default on the part of the revision petitioner. Both the authorities below adverted to this also and held that the revision petitioner has committed wilful default in payment of rent and has made himself liable to be evicted on this ground. No other point is urged before me. The civil revision petition is dismissed. However, there will be no order as to costs. Revision petitioner will have 3 months time to vacate the premises. Consequently, C.M.P. No. 958 of 1999 is closed.