Madras High Court
Janaki Devi vs Krishnan Nambiar And Ors. on 2 September, 1988
Equivalent citations: (1989)1MLJ432
ORDER Mohan, J.
1. These revision petitions can be dealt with the under a common order.
2. The landlady is the revision petitioner, She filed seven petitions against eight tenants occupying different portions of premises No. 9, Acharappan Street, George Town, Madras, for eviction of the tenants under Section 18(2)(a) of the Tamil Nadu Act 18 of 1960. The eviction was on the ground that they had committed wilful default in payment of rent for the period. 1.12.1980 to 31.12.1981. The various respondents-tenants arc occupying different portions of the same building. In one case R.C.O.P. No. 323 of 1982 the allegation against the tenant was that he sub-let the portion.
3. The tenants filed separate counter affidavits, stating that the allegation of wilful default was incorrect. The allegation regarding Sub-letting was denied, stating that he was only the nephew of the tenant and not a sub-lessee. The main plea of all the tenants was that they received notices from the Corporation of Madras, calling upon them to pay the arrears of property tax due on the property that after payment of the same and giving credit to it, when the balance amount was sent to the landlady, she refused to accept the same; so much so, they had to prefer applications for deposit under the Rent Control Act to avoid any eviction, It was also contended that the application was mala fide since earlier the tenant was sought to be evicted on the ground of demolition and reconstruction. That having been dismissed, the landlady has now resorted to the other ground of wilful default.
4. All these petitions came to be enquired jointly. The Rent Controller held that the plea of the landlady could not be sustained. Consequently he dismissed the ground of wilful default and also subletting in R.C.O.P. No. 323 of 1982. Aggrieved by that order, appeals were preferred to the Appellate Authority in R.C.A. Nos 84 to 90 of 1983. By an order dated 21.4.1983 the Appellate Authority concurred with the finding of the Rent Controller. Thus, these revisions attacking the concurrent findings.
5. Mr. Venkatachalapathy, learned Counsel for the petitioner would strongly urge on the strength of decisions in R. Jagannatha Chettiar v. Swamambal and S. Sundaram Pillai v. V.R. Pattabiraman 98 L.W. 49 as well as A. Vasudevan v. S. Ramasubramaniam and 3 Ors. 1988 Dec-can Rent Control Reporter 188 that payment of Corporation tax, when the tenant was under no obligation to pay would mean only voluntary payment and, therefore, by such payment, they cannot be relieved of the liability of wilful default. As a matter of fact, in the decision in R. Jagannatha Chettiar v. Swarnambal it has been categorically laid down so. The same ratio was adopted in A. Vasudevan v. S. Ramasubramaniam and 3 Ors. 1988 Deccan Rent Control Reporter, 188, though the decision in S. Sundaram Pillai v. V.R. Pattabiraman 98 L.W. 49 is a case which relates to the payment of income-tax. Even then it was held that it would not constitute defence to put forth in a plea for recovery of arrears of rent or for eviction on the ground of non-payment of rent. Under these circumstances, the findings of the Authorities below are liable to be set aside. Even otherwise, it is not the case of some of the tenants that they had received demands from the Corporation of Madras. Such of these who did not receive such demands cannot make virtue of this voluntary payment and try to defeat the just claim of the landlady. Then again, the application filed by the tenant for deposit of rent having been dismissed, it is a clear case of wilful default.
6. In opposition to this, Mr.V. Kunchithapatham, learned Counsel for the respondents would point out that wilful default would amount to suspine or callous indifference. Judged by that standard, it cannot be urged that there is any such indifference. On the contrary, the evidence is replace in this case that such of those tenants who were in arrears had to pay the Corporation tax; because otherwise they would face distraint proceedings. So long as the legitimate demand of the landlady had been discharged, it cannot be said that in every case such voluntary payment of the tenant would not relieve the tenant from the obligation of payment of rent. It-is true that in R. Jagannatha Chettiar v. Swamamabal it has been laid down so. But here there are other facts viz., the previous vendor of the landlady viz., Manickammal called upon the tenants not to pay the rent to the landlady and that is way even when notices were sent, the landlady kept quiet for a period of more than six months. This necessitated the tenants (all of them) to file applications under the Rent Control Act for the deposit of arrears of rent. Therefore, by no stretch of imagination it can be contended that there was any supine indifference in this case. Judged on these facts, the decisions in R. Jagannatha Chettiar v. Swamambal or A. Vasudevan v. S. Ramasubramaniam and 3 Ors. 1988 Dec-can Rent Control Reporter, 188 would have no application. The decision in 5. Sundaram Pillai v. V.R. Pattabiraman 98 L.W. 49 being a case in relation to income-tax again cannot be pushed into service.
7. As a matter of fact, the landlady is trying to evict the respondent herein by some method or other. Earlier she came forward with a plea of demolition and reconstruction. In that she failed. Therefore, she has invented another ground of wilful default. There is absolutely no bonafide in these petitions.
8. In order to appreciate the respective contentions, I have to cull out the fact from the order of the Appellate Authority. In this case the revision petitioner purchased the property under Ex.P.3 dated 24.3.1980. The schedule mentioned property is a house and ground bearing Door No. 9, Acharappan street, George Town, Madras. Again under Ex.P.6 dated 12.5.1981 the landlady purchased a dilapidated country tiled house in the rear side of door No. 9, Acharappan Street, George Town, Madras. As is seen from the evidence, some of the tenants are occupying the front portion of the building, while some of the tenants are living in the rear portion. From that it would be clear that she became the owner of the entire property only on 12-5-1981. However, she is claiming arrears of rent even from 1.12.1980.
9. The tenant in R.C.O.P. No. 323 of 1982(Kannappan) R.C.A. No. 84 of 1983 received Ex. 8.2 from the Corporation of Madras. That is dated 8.12.1980. It was under the threat of distraint proceedings, he paid Rs. 60 under Ex.R.3, dated 19.12.1980: Subsequently he sent the rent for January 1981 by money order under Ex.R.4. That was refused by the landlady. Again under Ex.R.5, dated 6.7.1981 he paid Rs. 360 to the Corporation towards the property tax. It should be noticed at this stage that the arrears of tax stood up to Rs. 4968.48. After this payment, Ex.R.1 notice was sent to the landlady by this tenant informing about the payment of tax to the Corporation. Ex.R.1 is dated 9.7.1981. For reasons best known to the landlady, it was not replied. In this notice the tenant had called upon the landlady to get a letter from the Corporation permitting or directing the tenants to pay the rent to the landlady herself. He filed a petition for depositing the rent. That was dismissed, on the landlady agreeing to receive the rent.
10. The next case is R.W.3, Ezhumalai, the tenant in R.C.O.P. No. 324 of 1982-RA. No. 85 of 1983. He had also paid the Corporation tax as seen from Ex.R.6 series. Under these series, he had paid Rs. 35 The evidence bears out that the vendor of the revision petitioner-landlady, one Manickammal had called upon the tenant not to pay the rent to the landlady. Somuch so, it became necessary on the part of the tenant herein to file H.R.C. No. 6033 of 1981 praying for permission to deposit the rent. A notice was issued under Ex. 8.7 in respect of the same.
11. The tenant is Govindarajulu in R.C.O.P. No. 325 of 1982-R.C.A. No. 86 of 1983. R.W.4 is his son. He tendered testimony to the effect that his father had paid Corporation tax under Exs.R.8 and Rule 9. Further his father had filed R.C.O.P. No. 6056 of 1981, praying for permission to deposit the amount, which ultimately came to be dismissed because of the landlady agreeing to receive the rent.
12. In R.C.O.P. No. 326 of 1982-R.C.A. No. 87 of 1983 the tenant is Krishna Nambiar. His son tendered evidence as R.W.6. His case is that he received Ex.R.13 from the Corporation of Madras. He paid the Corporation tax under Exs.R.14 to Rule 16. Thereafter rent was sent by money order. That was refused by the landlady. This has been admitted by the landlady. The tenant filed H.R.C. No. 594 of 1982 praying for deposit of the rent and on 9.9.1981 the entire arrears of rent had been deposited.
13. R.W.5 is the respondent in R.C.O.P. No. 327 of 1982-R.C.A. No. 88 of 1983. His case is that he also paid the Corporation tax under Exs.R.11 and Rule 12. He also later on filed a petition for deposit of the rent.
14. R.W.7 is the tenant in R.C.O.P. No. 328 of 1982-R.C.A. No. 89 of 1983. He also paid the Corporation tax on receipt of demand under Ex.R.21. The payment is made under Ex.R.22 series. His case is also that Manickammal called upon him not to pay the rent to the landlady, and therefore, he filed H.R.C. No. 6054 of 1981 for depositing the rent into Court.
15. R.W.8 is Narayanan, who is the tenant in R.C.O.P. No. 329 of 1982-R.C.A. No. 90 of 1983. He also paid the Corporation tax and filed similar application for depositing the rent into Court. He has deposited the entire arrears of, rent.
16. It is in this background that the arguments of the respective sides will have to be considered. In the decision in R. Jagannatha Chettiar v. Swarnambal (1.984)2 M.L.J. 6 at page 11), Ratnam, J., has held as follows:
... even if a demand notice for property tax or water tax had been received by the tenant it was the duty of the tenant to have brought it to the notice of the landlord and only thereafter the tenant should have acted in accordance with the directions given by the landlord or as a prudent occupier of the property, if she was driven to adopt that course. In this case, the evidence does not disclose that the tenant informed the landlord about the receipt of the demand notices and that there was a direction by the landlord that the tenant should pay the property and water taxes and adjust the same out of the rents. In the absence of any such direction or understanding, any payments made by the tenant would only be in the nature of a voluntary payment and would not in any manner bind the landlord nor would it give rise to any right in the tenant for an adjustment of those amounts against the rents payable. Considered in that light, the property and the water taxes claimed to have been paid by the tenant in this case would partake the character of only voluntary payments. It may be that the tenant can recover those amounts in accordance with Section 375 of the Madras City Municipal Corporation Act or by other modes, but that would not shield her from the consequences of non-payment of rents for nearly a period of 11 months without any justification at all. In as much as on the facts and in the circumstances of this case, the payments stated to have been made by the tenant have been held to be voluntary, those payments cannot be taken advantage of by the tenant and cannot be pleaded an answer to the prayer for an order of eviction on the ground of wilful default.
But in this case, as I pointed out earlier, what requires to be decided is whether the tenant has committed wilful default in the payment of rent, in that there was supine or callous indifference as laid down in S. Sundaram v. V.R. Pattabhiraman . therefore, where no doubt, without informing the landlady, yet in the circumstances of the case and the factual background, which I have set out in extense, I find it difficult to come to a conclusion that the tenant has committed wilful default in the payment of rent. The failure of the landlady in replying to the reply notice under Ex.R.1 and keeping quiet for a long period of six months together with her refusal to accept the rent would be a positive proof to her contributing to the wilful default. That was the reason why the tenant had approached the Rent Control Court to grant permission to deposit the arrears of rent. This conduct clearly dispels any dishonest intention or supine indifference on the part of the tenant. As a matter of fact, the decision in S. Sundaram v. V.R. Pattabhiraman has categorically ruled that it is not the mere default that will entail eviction; but it must be wilful intentional or incidental.
17. Therefore neither the decision in R. Jagannatha Chettiar v. Swamambal nor the decision in A. Vasudevan v. S. Ramasubramaniam and 3 Ors. 1988 Deccan Rent Control Reporter, 188 will be of any assistance, having regard to the facts and circumstances of the case. Equally the decision in S. Sundaram Pillai v. V.R. Pattabhiraman 98 L.W. 49 cannot advance the case of the revision petitioner. If the conduct of the tenant is judged as a whole, I think there was no intentional default.
18. In the result, I see no difficulty in upholding the concurrent orders of the Courts below. The revision petitions are, therefore, dismissed. No costs.