Madras High Court
Nazimuddhin Ahmed Represented By His ... vs K. Narasimha Rao on 19 February, 1993
Equivalent citations: (1993)2MLJ39
ORDER Bellie, J.
1. The tenant is the revision petitioner. The Rent Controller passed an order of eviction against the tenant on the petition filed by the landlord and that order has been confirmed by the appellate authority. Against that the tenant has filed this civil revision petition.
2. The landlord filed the eviction petition on the ground that the tenant failed to pay rent at the rate of Rs. 150 per mensem from July, 1990 to November, 1990 and this was inspite of a notice issued by the landlord dated 16.11.1990 calling upon the tenant to vacate the premises, and therefore there was wilful default in payment of rent.
3. The tenant denied that there was wilful default He contended that the landlord consented that the tenant could effect repairs to the premises and the amount spent for that could be adjusted towards the rents from July, 1990, and he (tenant) effected repairs to the premises spending a sum of Rs. 1,000. However on receipt of notice from the landlord he sent a demand draft for Rs. 750 as rent for five months along with a reply and the landlord has received the same. Hence it is not correct to say that he committed wilful default in payment of rent.
4. The Rent Controller as well as the appellate authority rejected the contention of the tenant that the landlord consented to effecting repairs by the tenant and deduct the amount spent towards rents from July, 1990. They held that the tenant committed wilful default in payment of rent Hence both the courts below concurrently held that the tenant is liable to be evicted.
5. Against this the tenant has preferred this civil revision petition. In the C.R.P., Mr. T.P. Sankaran, learned Counsel appearing for the revision petitioner-tenant has raised a question of law against the order of eviction. The learned Counsel submits that there is an advance of Rs. 3,000 towards rent paid by the tenant to the landlord, and as per Section 7(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the landlord shall not receive an advance exceeding one month's rent, and if he has received an advance of more than that amount he shall refund the same to the tenant, or at the option of the tenant that amount shall be otherwise adjusted, and the landlord having that money with him which is much more than the alleged arrears for five months he cannot plead that there was wilful default in payment of rent and therefore the orders of eviction passed by the courts below are erroneous.
6. It is not disputed that the Landlord is having a sum of Rs. 3,000 with him as advance. It is also not disputed that as per Section 7(2) the landlord may receive one month's rent only as advance and not more than that. Therefore, a sum of Rs. 2,850 of the tenant's money is lying with the landlord with-out any right on the landlord for that. At this stage, to appreciate the contention raised by Mr. Sankaran, it would be better to reproduce here Section 7(2).
7(2) Where the fair rent of a building has not been so fixed--
(a) the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month's rent, by way of advance;
(b) save as provided in Clause (a), any sum paid in excess of the agreed rent, whether before or after the date of the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord.
7. This section makes it very clear that any amount paid by the tenant in excess of the agreed rent and one month advance if stipulated by the landlord shall be refunded by the landlord to the tenant Thus, there is a mandate of law to the landlord to refund that amount even though the tenant has not asked for that But an option is given to the tenant to tell the landlord to adjust that amount towards rent and that the landlord shall do.
8. The question is when the landlord has not refunded the said excess amount as enjoined on him by law, even though the tenant has not asked him to adjust that amount towards the arrears of rent, can it be said that the tenant has committed wilful default in payment of rent Obviously not When the tenant's amount is with the landlord which the landlord ought to have refunded and he failed to do so, and the amount is more than the alleged arrears of rent, it does not lie in the mouth of the landlord to say that the tenant committed default much less wilful default in payment of rent because rent amount payable by the tenant and even more is already with the landlord.
9. Mr. Sankaran, in, support of his contention relied on a Supreme Court decision in Modem Hotel, Gudur v. K. Radhakrishnaiah . In that case which arose under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, an advance of Rs. 5,000 paid by the tenant was lying with the landlord, and that amount was higher than the rent that was due on the date of petition for eviction on the ground of wilful default in payment of rent. In the lease deed there was a stipulation that the said advance amount of Rs. 5,000 shall be paid back to the tenant after the expiry of the lease period. It was argued on behalf of the tenant that, When the landlord had Rs. 5,000 on tenant's account with him which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent.
The Court said, In view of the fact that the stipulation that the amount would be refundable at the end of the tenancy is null and void under Section 7(3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs. 5,000 of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months.
It is clear that as per this decision of the Supreme Court, in our case, the landlord cannot contend that there was wilful default in payment of rent. It may be mentioned here that Section 7 of the Tamil Nadu Buildings (Lease and Rent Control) Act is in pari materia with Section 7 of the Andhra Buildings (Lease, Rent and Eviction) Control Act.
10. However, Mr. T. V. Ramanujam, learned Counsel appearing for the landlord cites another decision of the Supreme Court in Nand Lal Agarwal v. Ganesh Prasad Sah , which was rendered under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 and submits that as per this decision without the tenant calling upon the landlord to adjust the amount lying with the landlord which was paid in excess of the rent, he cannot contend that there was no wilful default in payment of rent, and in our case the tenant having failed to exercise such an option it is not open to him to plead that there was no arrears of rent. This decision viz., Nand Lal Agarwal v. Ganesh Prasad Sah , of the Supreme Court is earlier to the abovesaid decision of the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnaiah . Of course the earlier decision has not been referred to in the later decision but even then the later decision, besides being later in point of time, in my view, considering what I have stated above interpreting Section 7(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, lays down the correct position of law.
11. It was brought to my notice a decision of this Court by a single Judge in P.S. Venkatarajan v. T.A. Govindarajan , wherein both the abovesaid two decisions of the Supreme Court were cited. In this case, according to the learned Judge, in the later decision of the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnaiah , not only the earlier decision in Nand Lal Agarwal v. Ganesh Prasad Sah, has not been referred to but also the question whether the advance amount of Rs. 5,000 of the tenant with the landlord would tantamount to automatic adjustment of the arrears of rent due from the tenant does not appear to have been specifically adverted to and considered. The learned Judge has further stated that on the contrary the decision of the Supreme Court in the earlier decision in Nand Lal Agarwal v. Ganesh Prasad Sah is in accordance with Section 7(2) of the Act and also the earlier decisions of this Court and then the learned Judge has stated that in these circumstances the later decision of the Supreme Court in Modern Hotel, Gudur v. K. Radhakrishnaiah , would not be of any assistance to the tenant. With great respect I am unable to agree with this view of the learned Judge.
12. I have given above the arguments advanced by the counsel for the tenant in the decision in Modern Hotel, Gudur v. K. Radhakrishnaiah and the view expressed by their Lordships with reference to Section 7(3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. At the risk of repetition it may be referred to here the view expressed by their Lordships regarding the advance amount of Rs. 5,000 that, the amount became payable to the tenant immediately and the landlord with Rs. 5,000 of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months.
I find that the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnaiah has clearly considered the effect of Section 7(3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in regard to the excess advance amount paid by the tenant lying in the hands of the landlord. Thus considering I hold that the tenant-revision petitioner has not committed wilful default in payment of rent as pleaded by the landlord-respondent.
13. In the result, therefore, the civil revision petition is allowed, the order of eviction passed by both the Courts below are set aside and the eviction petition is dismissed. Considering the circumstances of the case there will be no order as to costs throughout.