Madras High Court
Velmurugan Engineers By Proprietor, ... vs A. Kaliappan on 13 February, 1998
Equivalent citations: (1998)2MLJ472
ORDER R. Balasubramanian, J.
1. The revision petitioner is the respondent/tenant in R.C.O.P. No. 226 of 1986 on the file of the Rent Controller, Coimbatore and the appellant in R.C.A. No. 128 of 1989 on the file of the Appellate Authority (Second Additional Sub-Judge), Coimbatore. The respondent is the landlord/petitioner in the rent control petition. In this judgment, the parties to this revision will hereinafter be referred to as the landlord and the tenant. There is an order of eviction passed by the Rent Controller on the ground of owner's occupation in respect of a non-residential building under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Rent Controller rejected the eviction sought for on the ground of wilful default. The tenant filed an appeal and the learned appellate Judge held that the requirement of the landlord for owner's occupation falling under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) is not made out and therefore that finding went in favour of the tenant. However, the appellate authority after going into the finding of the Rent Controller on the ground of wilful default and disagreeing with the Rent Controller on that finding, ordered eviction in the appeal against the tenant on that ground. The correctness of the judgment of the appellate authority as referred to above is questioned in this revision.
2. It appears that the landlord had not filed any appeal at all against the order of the Rent Controller rejecting his request for eviction on the ground of wilful default. However, the question whether in the absence of an appeal by the landlord on that finding, could the appellate authority in the appeal filed by the tenant go into that question and reverse it, is no longer was integra in view of the judgments of this Court reported in (1989) 1 L.W. (Summary of Judgments) 46 and (1996) 1 M.L.J. 16. Therefore, the appellate authority was legally justified in taking up that question in the absence of an appeal before it.
3. There is no dispute that there exists the landlord-tenant relationship. The rent agreed is Rs. 500 and that is also not disputed. The payment of rent up to October, 1985 is also not disputed. The petition was filed for eviction stating that the tenant is in wilful default in paying the rent from November, 1985. Admittedly a sum of Rs. 10,500 under Ex.B.5, dated 28.7.1987 came to be paid by the tenant to the landlord. This payment covers arrears of rent from November, 1985 onwards. In defence to the ground of wilful default, the tenant pleaded that he sent a cheque dated 2.1.1986 for a sum of Rs. 1,000 representing the rent for the months of November and December, 1985 to the landlord, which he refused. Thereafter in February 1986, he had sent a Money Order for a sum of Rs. 500 the coupon of which is marked as Ex.B-2, which was also refused. Then the tenant filed an application under Section 8(5) of the Act which is marked as Ex.B-3 in this case. Ex.B-3 was returned by the office of the Rent Controller, stating that it must be pointed out as to how the court has got jurisdiction to entertain the petition. The tenant would further contend that be opened a separate Savings Bank account and the Pass Book of which is marked as Ex.B-4 and in that he had deposited the entire arrears of rent up to that date as well as continued to deposit the subsequent arrears. Exs.B-6 to B-27 are the rental receipts for the payment of rent for the subsequent period. On these documentary evidence, it is contended on behalf of the tenant that even though there might have been a default by the tenant, yet it cannot be termed as a wilful default. It is also contended by the learned Counsel for the tenant that the landlord has unjustly refused the rent sent under Exs.B-1 and B-2 and therefore it does not lie in his mouth to say that the tenant is guilty of committing wilful default. This is more so because, the tenant did not keep quiet after the refusal of the rent by the landlord and he gave a notice to the landlord asking him to name a Bank (statutory requirement) followed by the filing of the petition itself.
4. On these undisputed facts, the question that falls for consideration is whether the appellate authority is justified in holding that the tenant has committed any wilful default. As found by the appellate authority, there is absolutely no proof at all before court to establish that the cheque under Ex.B-1 was sent by the tenant to the landlord and that it was refused. The appellate authority on going through the records found that the tenant had not even pleaded so in his counter statement and only for the first time when he gave evidence before court on 25.7.1989. he chose to say so. Therefore the finding of the appellate authority that the tenant had not sent a sum of Rs. 1,000 by way of cheque under Ex.B-1 towards the rent for the months of November and December, 1985 has to be necessarily sustained. The next payment is under Ex.B-2 which is a Money Order coupon for a sum of Rs. 500 and admittedly this sum represents the rent due for January, 1966 which is sent in February, 1986. This has also been refused and it is not disputed. The explanation given by the landlord for the refusal appears to be that since three months rent was due as on that date, the rent given by the tenant for only one month alone was not proper. Therefore to my mind, the return of the amount covered under Ex.B-2 appears to be legally justified, because no landlord can be compelled to accept a portion of a large arrears of rent. In this case, admittedly three months rent was due as on that date. It is no doubt true that the tenant had taken steps as contemplated under the Act calling upon the landlord to name a Bank and on his failure to do so, he filed an application under Section 5 of the Act. Up to this stage, it may be safely assumed that the tenant appears to have taken steps bona fide for discharging his obligations towards his landlord in the payment of rent. For some reason or the other, the Rent Controller seems to have returned this application directing the counsel for the tenant in that case to show as to how the court has jurisdiction. The normal conduct of the tenant, who wants to pay the sent, would be to pursue his remedy under Ex.B-3, which is the returned original petition filed by him under Section 5 of the Act by convincing the court that it has the necessary jurisdiction. However, for reasons known to him, he chose to keep quiet and he did not bother to take any further steps in regard thereto.
5. However, it is established that he opened a Savings Bank account, the Pass Book of which is marked as Ex.B-4 and a sum of Rs. 2,500 was deposited into the Bank on the date of opening of that Account followed by remittances of Rs. 500 every month without fail for the following and succeeding months. I perused Ex.B-4 and it shows that the money so deposited by the tenant was never withdrawn and it was always available. But there is nothing on record to show, neither pleading nor proof, that prior to opening of the account referred to above and depositing the money as found therein, the tenant has sent any communication to the landlord about his doing so. But I find from Ex.A-5, the reply notice sent on his behalf by his counsel on 24.6.1986 that the Bank Account was opened only after giving an intimation to the landlord. This intimation is not before the court.
6. Prior to the filing of the rent control petition, the landlord gave a notice through his counsel on 10.6.1986 which is marked as Ex.A-4. The rent control petition itself came to be filed on 4.8.1986 and on being served with summons, the tenant appeared before the Rent Controller on 11.9.1986. In Ex.A-4, it has been clearly mentioned that the tenant is in arrears of rent from November, 1985 and a demand for payment of the entire arrears of rent was made. As already stated, this notice is dated 18.6.1986. In the reply notice dated 24.6.1986, the tenant admits that he had paid rent only up to September, 1985 and thereafter the landlord refused. At this stage, the court has to find out what is expected of a tenant who wants to perform his obligations under the contract of tenancy. He should have immediately sent the entire arrears of rent as demanded under Ex.A-4 in any known mode to the landlord and escaped any possible action by the landlord against him on that ground. However he did not do so and he paid the entire arrears only on 28.7.1987. The explanation to Section 10(2)(1) of the Act reads as follows:
For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two month's notice by the landlord claiming the rent.
The explanation does not contemplate a notice giving two months time to pay the rent. It is enough according to me, that for a period of two months after the receipt of the notice as provided for in the explanation, the default continues. It is not as though that there is no default in this case. There is definitely a default. It is of course, true that before the expiry of two months mentioned in the explanation referred to above, the rent control petition itself came to be filed. But however, if the tenant had tendered the rent after the commencement of the proceedings and before the expiry of that two months referred to above, then he should have definitely escaped from the clutches of law. Since admittedly he has not done this, the explanation makes his default as a wilful default and there is no escape from this conclusion. Not only the default continuing for a period of more than two months after Ex.A-4, but the conduct of the tenant as referred to by me would also clearly indicate that the tenant is definitely guilty of wilful and realcitrant attitude.
7. No doubt the learned Counsel for the tenant argued that the landlord is in possession of a sum of Rs. 6,500 as advance, which is in far excess of two months rent and since the statute prohibits such an excess advance in the hands of the landlord, he should not be allowed to complain that the tenant is guilty of wilful default. For this, the learned Counsel relied on the judgment of the Honourble Supreme Court of India. It is no doubt, true, the law is like that. But in this case, there is no pleading at all at the instance of the tenant that the landlord is having an excess advance amount in his hand. If the advance is there, then even without any demand from the tenant to adjust or set off the arrears of rent, the landlord is bound to adjust the same from the excess advance amount. In this context, the learned Counsel brought to my notice one statement in the evidence of P.W.1, which is to the following effect:
I received Rs. 6,500.
Likewise R.W.1 would state that he paid a sum of Rs. 6,500 as advance. Putting these two materials together, the learned Counsel for the tenant argued that there is an excess advance amount in the hands of the landlord. It has been held repeatedly that any amount of oral evidence without any pleading to support the same cannot be looked into and on that ground alone, the material evidence of the tenant has to be rejected. Even then, this Court is not in a position to find out from the oral evidence of P.W.1 that, though he has a sum of Rs. 6,500 with him, yet it is only an advance amount, Therefore, I have no hesitation in holding that the order of the lower appellate authority that the tenant is definitely guilty of wilful default is correct.
8. Though the Rent Controller ordered eviction under Section 10(3)(a)(iii) of the Act, the appellate authority in the appeal filed by the tenant chose to set aside that finding. The landlord had not filed any revision before this Court against that finding of the Rent Controller on his requirement under Section 10(3)(a)(iii) of the Act. In such a situation, can this Court go into it and the answer seems to be in the affirmative in view of the judgment of this Court reported in (1989) 1 L. W. (Summary of Judgments) 46.1 find that the pleadings to substantiate the requirement under Section 10(3)(a)(iii) of the Act are clearly spelt out. It stands established in this case that the landlord was originally doing business and has to stop the same for want of space. To start a business, he had purchased a Rotary Machine (Ex.A-1), Electricity Service connection obtained from the Electricity Board (Ex.A-2) and Ex.A-3 is the communication from the commercial Tax Officer and it is addressed to the landlord. It discloses that he had paid the excess tax and that he must appear and got the refund. Therefore Ex.A-3 shows that he is carrying on business and Ex.A-1 and Ex.A-2 show that he had made all arrangements to start a business. It has been held repeatedly by this Court that to bring the requirement under Section 10(3)(a)(iii) of the Act, as in a case like this it is enough if the landlord shows that he had taken some concrete steps towards the commencement of the business. From the materials on record, I have to hold that the landlord had completely satisfied the requirement of owner's occupation (non-residential) and the requirement is bona fide. There is no material at all to show that he is in occupation of any building of his own for that purpose. The appellate authority had erred in law in reversing the well considered finding of the Rent Controller on this ground. Therefore the landlord has to succeed on the ground of owner's occupation as well. Thus I find no merits in this revision and it is accordingly dismissed. A request is made by the learned Counsel for the revision petitioner that six months time may be granted for vacating the premises. The learned Counsel for the landlord/respondent suggested three months period as the reasonable time to vacate. Accordingly, the tenant is given three months time from today to vacate the premises forming the subject matter of the rent control proceedings, out of which the present C.R.P. has arisen on condition that the tenant files an undertaking affidavit before this Court within three weeks from today agreeing unconditionally to vacate the premises without in any may driving the landlord to the executing court, failing which the time granted will seize to operate. There will be no order as to costs.