Madras High Court
Mr. V. Subramanian vs Mr. J. Venkatraman And Mr. J. ... on 18 February, 2004
ORDER S. Sardar Zackria Hussain, J.
1. The unsuccessful tenant before the learned Rent Controller, who ordered eviction from the petition residential premises on the grounds of wilful default in payment of rent and that the premises is required bona fide for own use and occupation of the landlords, and who also lost the case before the learned Rent Control Appellate Authority in respect of the eviction ordered on the ground of wilful default in payment of rent, is the revision petitioner.
2. The respondents, who are brothers, filed the Rent Control Original Petition for eviction on three grounds, viz., on the ground of willful default in payment of rent at the rate of Rs.200/- per month from June, 1986 to January, 1987, that the premises is required bona fide for own use and occupation by the landlords and that the petition premises is also required bona fide for demolition and reconstruction. They have claimed that the petition premises was allotted to their share pursuant to partition arrangement between them and their another brother Sundararajan.
3. The revision petitioner/tenant challenged the petition on the ground that the quantum of rent is Rs.130/- per month. Further, according to him he has been paying the current consumption charges in respect of the portion in the same building and occupied by one Sundararajan, who is the brother of the landlords and deducting such charges he has been paying the rent to the second respondent herein. He paid rent for the month of October, 1986 and when the rent for the month of November, 1986 was tendered it was refused by the second respondent. Hence, the rent for the month of November, 1986 was sent deducting the current consumption charges of Rs.25/- by money order, which was refused and returned by the second respondent herein as well the rent sent on 16.1.1987 deducting Rs.37.15 towards current consumption charges by the second respondent herein. The revision petitioner sent notice dated 27.1.1987 to the second respondent herein to name the bank to deposit the rent. The landlords caused notice on 21.1.1987 to which a reply was sent to the landlords by the revision petitioner. The landlords were not in the habit of issuing rental receipts. The partition arrangement between brothers and allotment of the petition premises to the share of the respondents herein is disputed as well the bona fide requirement of the petition premises for demolition and reconstruction.
4. The learned Rent Controller considering the evidence of the second respondent herein examined as P.W.1 and that of the tenant/revision petitioner herein as R.W.1 and Exs.A-1 to A-3 found that the tenant has committed willful default in payment of rent and that the requirement of the petition premises for own use and occupation by the respondents/landlords is bona fide and on those two grounds ordered eviction and denying the eviction on the ground of demolition and reconstruction that such requirement is not bona fide. The tenant preferred the appeal in R.C.A.No.42 of 1995. The learned Rent Control Appellate Authority though found in favour of the tenant that the requirement of the petition premises by the landlords for own use and occupation is not bona fide, confirmed the eviction as ordered by the learned Rent Controller on the ground of willful default in payment of rent. Hence, the tenant has moved this Court by filing this Civil Revision Petition.
5. The learned counsel for the revision petitioner/tenant mainly argued that he paid the rent till October, 1986 deducting current consumption charges and the rent sent to the second respondent herein on 10.12.1986 by money order for the month of November, 1986 was refused. He caused lawyer notice under Ex.A-2 dated 27.1.1987 to name the bank for depositing the rent. The sum of Rs.223/- sent on 16.1.1997 being the rent for the months of November and December, 1986 deducting the current consumption charges of Rs.37.15 was returned by the second respondent herein. However, since on the first hearing date, viz., on 10.4.1987, the entire rent arrears due has been paid in the Court, and so it cannot be said that the tenant has committed default much-less willful default in payment of rent. The learned counsel also submitted that immediately after causing of lawyer notice Ex.A-1 dated 21.1.1987, the Rent Control Original Petition was filed within two months on 20.2.1987 without affording opportunity to the tenant to pay the rental arrears and as such, it cannot be said that the tenant has committed willful default in payment of rent as claimed.
6. The learned counsel for the revision petitioner has relied on the following decisions:-
(1) M/s. Chordia Automobiles - vs. - S.Moosa & others reported in 2001-1 Law Weekly 737 in which the Supreme Court ruled:-
"Willful 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 fact that the agent of the landlords 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 into a case of willful default in terms of the Explanation to the proviso 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 willful defaulter."
(2) S. Loganathan - vs. - V.S.Rangasamy reported in (2002)1 M.L.J. 31, in which this Court has held:-
"Tamil Nadu Buildings (Lease and Rent Control) Act, Section 10(c), willful default. Tenant sending rent by money order and issuing notice to landlord to name a bank to deposit rents. Subsequent filing of petition by landlord seeking eviction of tenant for willful default in payment rents. Tenant's conduct is not willful default or supine indifference."
(3) Abdul Hameed - vs. - M.Sultan Abdul Kader reported in 1996 The Madras Law Journal Reports 579, in which this Court has held:-
"Admittedly, the entire arrears as on the date of the petition was paid along with the counter affidavit on the very first hearing. This would show that absolutely there is no willful default in the payment of rent."
(4) P.M. Punnoose - vs. - K.M. Munneruddin and others reported in 2003-4 Law Weekly, 671 in which the Supreme Court has ruled at page 672:-
"The explanation appended to sub-section (2) of Section 10 of the Act enacts a rule of evidence. After the issuance of two month's notice claiming the rent, the default by tenant shall be construed as willful raising a presumption in that regard and it will be for the tenant to show availability of sufficient cause or circumstances beyond his control to escape from the consequence of default. The landlord is not prevented from initiating proceedings for eviction on the ground of default under Section 10(2)(i) of the Act, without serving a notice under the Explanation but in that case it will be for the landlord to make out a case of willful default by tenant failing which the controller may exercise his discretion under the proviso giving the tenant a reasonable time, not exceeding fifteen days for payment or tender."
(5) K.Mohideen Sahib - vs. - Theodre Samuel reported in 1995-II The Madras Law Journal Reports 354, in which this Court has held:-
"Failure to resort to the procedures laid down in section 8(1) to (5) would not constitute willful default."
7. The learned counsel for the landlords contended that since the tenant sent the rent only for the month of October, 1986 in November, 1986, though the rent was due from June, 1986 and also deducting the current consumption charges in respect of portion said to have been occupied by Sundararajan, brother of the landlords, the same was refused. It is also argued that though the tenant caused lawyer notice under Ex.A-2 on 27.1.1987 to name the bank, no steps were taken by him for depositing the rent in Court as contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control ) Act, 1960. Further, according the learned counsel there is no agreement to pay the current consumption charges for the portion occupied by Sundararajan, brother of the landlords and to deduct the said amount from the rent payable to the landlords. Therefore, according to learned counsel for the landlords, even assuming that the rent was due only from October, 1986, since the tenant failed to pay the rent for the said month as well till February, 1987 and paid only on 10.4.1987, the tenant has committed default willfully in payment of rent for three months from October, 1986 to December, 1986.
8. Though it is claimed by the landlords that the rent payable for the petition premises is Rs.200/- per month and according to the tenant it is only Rs.130/- per month, inasmuch as admittedly the landlords are not in the habit of issuing receipt, it is to be presumed that the rent payable for the petition premises is Rs.130/- per month. According to R.W.1, he paid rent till October, 1986 and when the rent for the month of November, 1986 was sent deducting current consumption charges payable for the portion occupied by Sundararajan, brother of the landlords by money order, the same was refused as well the rent sent by money order for the months of November and December, 1986 deducting the current consumption charges. Even according to the tenant the rent for the months of November, 1986 and December, 1986 was due and payable as on the date of filing of the Rent Control Original Petition which was filed on 20.2.1987. The first hearing of the R.C.O.P. was 10.4.1987 on which date, it appears, Rs.586.15 was paid and received by the counsel for the landlords in Court towards rent for the months of November, 1986 to March, 1987 less current consumption charges paid by the tenant in respect of the portion occupied by Sundararajan, brother of the landlords in the said building.
9. P.W.1 has admitted in his evidence when he was examined on 2.3.1995 that rent was sent by Indian Bank demand draft for 6 or 7 months after filing of the Rent Control Original Petition and till January, 1995. If such rent paid was not proper, it was open to the landlords to file petition under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, claiming the arrears that entire rental amount has not been paid. Inasmuch as no such petition was filed, it is to be presumed that only as requested by the landlords, the tenant paid the current consumption charges for the portion occupied in the same building by Sundararajan, brother of the landlords and accordingly after deducting the said amount, the tenant was paying the rent. Inasmuch as the entire rental amount due from October, 1986 to March, 1987 have been paid on the first hearing date of R.C.O.P. viz., on 10.4.1987 less current consumption charges for the portion occupied in the same building by Sundararajan, brother of the landlords, it cannot be said that the revision petitioner/tenant committed default much-less willful default in payment of rent.
10. Admittedly, the landlords were not in the habit of issuing receipts and it is not proved by them that the rent was due from June, 1986 as claimed. Therefore, considering the facts that the rent payable from the months of November, 1986 till the date of filing of the Rent Control Original petition, viz., January, 1987 and also for the subsequent months, February, 1987 and March, 1987 had been paid on the first hearing date of the R.C.O.P. viz. on 10.4.1987 to the counsel for the landlords, it is clear that the revision petitioner as tenant has not committed willful default in payment of rent. It follows the eviction ordered on the ground of willful default by the learned Rent Controller as confirmed by the learned Rent Control Appellate Authority is to be set aside.
11. In the result, this Civil Revision Petition is allowed. The judgment and decree dated 24.8.1999 made in R.C.A.No.42 of 1995 on the file of the Rent Control Appellate Authority (Principal Sub Court), Tiruchirappalli are set aside. No costs. Consequently, the petition in C.M.P.No.22421 of 1999 is closed.