Madras High Court
Abdul Fatha And Another vs Villayudham And Another on 25 November, 1997
Equivalent citations: 1998(2)CTC627, (1998)IIIMLJ237
ORDER
1. These revisions have been filed by the defeated tenants against the order of eviction passed against them and against the order confirming the decision of the Rent Controller dismissing their application under Section 9 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960) as amended by Act 23 of 1973, hereinafter referred to as the Act.
2. The facts leading to the revision petition are as under:
The revision petitioner became tenants under one Ameenudeen Sahib on a monthly rent of Rs.200 in respect of the property subject matter of the proceedings. They paid rent regularly upto June, 1994. On 30.7.1994 under Ex.P.l the respondent Villayudham caused a notice to be issued to them stating that he had purchased the property from Ameenudeen Sahib on 13.6.1994 and requesting them to pay the rent to him. A reply was sent on behalf of the revision petitioners stating that their erstwhile landlord had not informed them about the sale and a copy of the sale deed was required by them. This was followed by a further reply under Ex.P.2 dated 14.8.1994 stating that they were willing to pay the rent to the respondent after a copy of the sale deed as required by them was sent to them. Thereafter, the original owner, viz, Ameenudeen Sahib sent a letter dated 26.9.1994 informing the revision petitioners about the sale of the property to the respondent. However, in the meantime, Ameenudeen Sahib received the rent for June and July, 1994 as evidenced by Exs.R.3 and R.4 respectively. The rent for August, 1994 was sent to the respondent in C.R.P.No.825 of 1997 under Ex.R-7 dated 29.9.1994, but the same was returned with an endorsement "refused". They again sent rent for August and September, 1994 under Ex.R-8 on 10.10.1994. It was also returned with an endorsement "refused". Thereafter, the revision petitioners filed a petition purporting to be under section 9 of the Act by filing an application for deposit of rent before the Court in R.C.O.P.No.28 of 1994. While the said application for deposit was pending, the respondent in C.R.P.No.825 of 1997 filed an application in R.C.O.P.No.10 of 1995 for eviction on the ground of wilful default and personal occupation. His case was that the revision petitioners committed default in the payment of rent for 8 1/2 months, i.e. from 13.6.1994 upto February, 1995. His further case was that he was running a marine spare parts shop and that he required the premises in question for his personal business.
3. The petitioners resisted the application filed by the present owner, viz. the respondent in C.R.P.No.825 of 1997 contending that there was no wilful default, that they were informed about the sale only by the end of September, 1994, that the respondent had refused to receive the rent for no tenable reason and that the sale having come to their notice only on 30.9.1994, there was no justification for demanding the rent for June and July, 1994 from the petitioners, particularly when they had paid the rent for June and July, 1994 to the original landlord. It was their contention that there was no default much less wilful default. They also contended that the requirement of the respondent for personal occupation lacked bona fides.
4. The learned Rent Controller ordered the application for eviction and dismissed the application for deposit of rent. The revision petitioners filed appeals in R.C.A.Nos.9 of 1996 and 11 of 1996 and the Appellate Authority having confirmed the orders passed by the Rent Controller, the present revision petitions have been filed.
5. Mr. A. Muthukumar, learned Counsel for the petitioners, contended that the authorities below clearly erred in rejecting the application for deposit of rent filed by the revision petitioners merely on the ground that a wrong provision of law had been quoted. He further contended that there was a stipulation in the agreement between the petitioners and the erstwhile owner, that in case the rent was not paid on or before the 10th of the particular month, the petitioners would be liable to pay an additional sum of Rs.5 by way of penalty and there was therefore no question of default. In support of this contention, the learned counsel relied on the decision of this court reported in R. Kandaswamy v. Sadasiva Iyer, 1974 TLNJ 163. The learned counsel also relied on the decision of a Bench of this court in Durgai Ammal v. R. T. Mani, 1989 (I) L.W.155 for the proposition that if the requirements of Section 8 of the Act were not availed of, it would not amount to wilful default. On the question of owner's occupation the learned counsel contended that the requirement of the respondent/landlord was not bona fide and that the premises in question would be totally inadequate for the business of the respondent.
6. Countering the arguments of the learned counsel for the petitioners, Mr. V. Raghupathi, learned counsel for the respondents, contended that, the filing of the petition under Section 9 of the Act itself was mischievous, particularly when the petitioners were put on notice, that their previous landlord had ceased to be the owner of the property and that the present respondent had purchased the property. Section 9 could be invoked in a case where the tenants were not sure on the ownership of the property and according to them there was dispute and that they were not in a position to decide as to who the owner of the property was and this was not a case where the petitioners did not know about the sale. The learned counsel also relied on the decision of this court in Padmavathi Ammal v. Gopal, 1994 (II) MLJ 622. The learned counsel also contended that the authorities below have concurrently accepted the case of the respondent both on the question of owner's occupation and on the question of wilful default and this Court should be loath to interfere with such a finding of fact.
7. Indeed there is a stipulation in the agreement between the petitioners and their previous landlord that in the event of default in the payment of the monthly rent before a particular date, they should add a sum of Rs.5 by way of penalty and pay the rent and this will clearly place the case beyond the province of "wilful default". in the case R. Kandaswamy v. Sadasiva Iyer, 1974 TLNJ 163 decided by Kailasam, J. as he then was, there was an agreement between the parties providing for payment of interest for arrears of rent if the rent was not paid on the due date. The learned Judge held that when the agreement provided for payment of rent on a particular date and that it also provided for payment of arrears of rent with interest thereon if the rent was not paid on the due date, the failure to pay the rent within the time prescribed under agreement would not amount to default much less wilful default in the payment of rent and Section 10(2)(1) of the Act would not be applicable to such a case. The learned Judge held that the question of evicting the tenant on the ground of requirement for landlord's own occupation of the premises during the period in which the agreement was in force did not arise. The present case is clearly distinguishable on facts. Assuming that the tenants would be well within their rights in paying the rent with an additional sum of Rs.5 in case the rent was not paid within a particular date, then the question in the instant case would be whether the tenants were justified in filing an application under Section 9 of the Act, particularly when they had been put on notice if not immediately after the sale in favour of respondent, but within two months thereafter. There was absolutely no justification on the part of the petitioners to have invoked section 9 of the Act as if there was doubt in their minds as to the ownership of the property. In this regard, the contention of the learned Counsel for the respondent that the application under Section 9 was mischievous is not without merit. The proper application should have been only under Section 8 saying that the landlord has refused to receive rent and requiring the court to receive the rent and keep it in deposit. Thus, in my view, the decision relied on by the learned Counsel for the petitioners in Kandaswamy v. Sadasiva Iyer, 1974 TLNJ 163 will not apply to the facts of the present case. Consequently, the Bench decision reported in Durgai Ammal v. R.T. Mani, 1989 (1) LW 155 will not also apply. That was a case of deposit under Section 8 and the Bench held that there was no wilful default when a landlord refused to received the rent sent by the tenant. He could not subsequently say that the tenant had not exercised his right given under Section 8 and therefore he must be taken to have committed wilful default. The Bench also held that if the tenant had not deposited the rent before the Rent Controller in case of bona fide doubt as to the person who was entitled to receive the rent and the person concerned did not help to remove the doubt of the tenant, the tenant could not be said to have committed wilful default in the payment of rent. In the instant case, admittedly, both the present and the past landlords had notified the petitioners that the property had changed hands. Still the petitioners chose to file a petition under Section 9 of the Act.
8. In these circumstances, I am clearly of the view that the filing of the application under Section 9 was not a mere technical mistake, but a deliberate and wanton action on the part of the petitioners and therefore the decisions relied on by the learned Counsel for the petitioners are not at all applicable to the facts of the present case. The finding reached by the authorities below that the petitioners had committed wilful default has therefore to be sustained.
9. The decision relied on by the learned counsel for the respondents in Padmavathi Ammal v. Gopal, 1994 (II) MLJ 622 arose under Section 8 of the Act. Pratap Singh, J. held that when the tenant chose to exercise the enabling provision, he should take steps one after another as laid down in the procedure and only if the landlord still refused to receive the rent, then he could come to the court with a petition under Section 8(5) of the Act. In that case, the tenant had skipped Section 8(4) of the Act. The learned Judge held that the tenant was obliged to take the step contemplated under Section 8(4) of the Act and since he had not done it, the petition filed by him under Section 8(5) of the Act had to necessarily fail. I have already held that the petition filed by the revision petitioners under Section 9 of the Act was misconceived. Assuming that a wrong section had been quoted and that it was only a petition under Section 8, in view of the decision of Pratap Singh, J. it has to be held that the authorities below rightly rejected the petition inasmuch as the tenants has jumped steps.
10. On the question of bona fide requirement for owner's occupation, I have already referred to the finding reached by the authorities below and that finding has been reached on appreciation of the facts and circumstances of the case and the materials on record and sitting in region under Section 25 of the Act no interference is called for.
11. Consequently, both the revisions have to fail and they are dismissed. However, there will be no order as to costs. The stay petition in C.M.P. No.4152 of 1997 is also dismissed.