Madras High Court
Yasodharan vs M.Lalitha on 28 July, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.2832 of 2009 and M.P.No.1 of 2009 1.Yasodharan 2.Ravendran ... Petitioners vs. M.Lalitha .... Respondent This civil revision petition is filed against the order dated 23.7.2009 passed by the Rent Control Appellate Authority(VIII Small Causes Court) Chennai, in R.C.A.No.580 of 2007 confirming the order dated 14.6.2007 passed by the XII Judge, Court of Small Cause, Chennai, in RCOP No.253 of 2007. For Petitioners : Mr.G.Hanumantha Rao For Respondent : Mr.S.Silambanan,Senior counsel for Mr.Santhanakrishnan ORDER
Animadverting upon the order dated dated 23.7.2009 passed by the Rent Control Appellate Authority(VIII Small Causes Court) Chennai, in R.C.A.No.580 of 2007 confirming the order dated 14.6.2007 passed by the XII Judge, Court of Small Cause, Chennai, in RCOP No.253 of 2007, this civil revision petition is focussed by the tenants.
2. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:
(a) The respondent/landlady filed the RCOP No.253 of 2007 invoking Sections 10(2)(i) and 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act (for short, the 'Act'), on the following grounds:
(i) The tenants committed 'wilful default' in paying the rents;
(ii) The premises concerned was sub-let by the first petitioner herein to the second petitioner.
(b) Ultimately, the Rent Controller ordered eviction only on the ground of 'wilful default' in payment of rent.
(c) As against the said order, the tenants preferred the appeal in RCA No.580 of 2007, for nothing but to be dismissed by the appellate authority.
(d) Being aggrieved by and dissatisfied with the orders the Courts below, the tenants preferred this revision on various grounds.
3. Placing reliance on the grounds of revision, the learned counsel for the revision petitioners/tenants would develop his arguments, the warp and woof of them would run thus:
(i) Admittedly, as per the landlady the pre-litigation notice was sent on 16.12.2006, whereas tenants sent the rents by money order, but it was refused and as such, there was no 'wilful default' on the part of the tenants in paying the rents.
(ii) The Courts below failed to take into account the said fact and simply held as though the tenants committed 'wilful default'.
Accordingly, the learned counsel for the revision petitioners/tenants would pray for setting aside the orders of the Courts below and for dismissing the RCOP.
4. By way of torpedoing and pulverising the arguements as put forth on the side of the revision petitioners/tenants, the learned Senior counsel for the respondent/landlady would develop his arguments, the gist and kernal of them would run thus:
It is the bounden duty of the tenants to pay the rent and even in the case of a landlady refusing to receive the rent, Section 8 of the Act should be resorted to by the tenants and they were not justified in simply refraining from paying the rents in allowing the arrears to accrue.
6. Heard both sides.
7. The point for consideration is as to whether there was any 'wilful default' in paying the rent on the part of the tenants in favour of the landlady and whether the Courts below fell into error in giving a finding that there was 'wilful default'?
8. A mere perusal and poring over of the typed set of papers and the records available before me, would exemplify and demonstrate that as per the landlady the notice demanding rent was sent on 16.12.2006 stating that from September 2006 onwards the rents were not paid. Whereas, the evidence on record as revealed by Exs.R3 and R4 would evince and display that the tenants sent the four months' rent i.e. rent for the months of September, October, November and December 2006 on 10.1.2007 and the said money order was found returned as refused.
9. It is therefore crystal clear that within two months from 16.12.2006, so to say the date of notice, the tenants paid the rent and that would amount to compliance with the request of the landlady.
10. In this connection I would like to recollect and call up the following decision of the Honourable Apex Court:
(2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS.
8. 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 the 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 proviso of Section 10(2). The dispute of rent admittedly was genuine. Furtuher, we find the 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.
9. In S.Sundaram Pillai v. V.r.Pattabiraman this Court had occasion to consider the word 'wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26) 21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
22. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p.268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:
'wilful' intentional; not incidental or involuntary;
- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
p.296 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:
governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.
24.The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus:
to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
25. In Black's Law Dictionary (Fourth edn.) at p.1773 the word 'wilful' has been defined thus:
'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.
The word 'reckless as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'
26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wiful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above. (emphasis supplied)
11. A mere perusal of the above decision would reveal that if rents are paid within two months from the date of notice, then 'wilful default' in payment of rent cannot be presumed.
12. I could see no rhyme or reason on the part of the landlady in refusing to receive the rent sent by money order and it is therefore crystal clear that the landlady was not justified in pressing into service the concept 'wilful default' as against the tenants.
13. The Courts below, considering the crucial aspect simply held as though the tenants were not diligent enough in paying the rents etc. In the wake of this glaring defect in the judgements of the Courts below, they have to be set aside. Accordingly, the orders passed by the Courts below are set aside and consequently the R.C.O.P. No.253 of 2007 is dismissed.
14. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Msk To
1. The VIII Small Causes Court, Chennai.
2. The XII Small Causes Court, Chennai