Madras High Court
Mrs.Seema Jain vs K.V.Narasimha Rao on 13 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.2574 of 2012 and M.P.No.1 of 2012 1. Mrs.Seema Jain 2. Manoj Jain .. Petitioners vs. K.V.Narasimha Rao ... Respondent Civil revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23/73 and 1 of 1980 against the judgment and decree dated 27.04.2012 passed by the learned VIII Judge, Court of Small Causes, Chennai in R.C.A.No.718 of 2010 in confirming the order and decree dated 24.09.2010 passed by the learned XVI Judge, Court of Small Causes, Chennai in RCOP No.2803 of 2008. For Petitioners : Mr.V.Bhiman For Respondent/ : Mr.A.V.K.Ezhilmani Caveator ORDER
Animadverting upon the judgment and decree dated 27.04.2012 passed by the learned VIII Judge, Court of Small Causes, Chennai in R.C.A.No.718 of 2010 in confirming the order and decree dated 24.09.2010 passed by the learned XVI Judge, Court of Small Causes, Chennai in RCOP No.2803 of 2008, this civil revision petition has been focussed by the tenants.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the Rent Controller.
3. A thumbnail sketch of the germane facts, in a few broad strokes, can be encapsulated thus:
(i) The respondent herein/the landlord preferred RCOP No.2803 of 2008, to get evicted the revision petitioners/tenants on two grounds, viz., wilful default and owner's occupation invoking Sections 10(2) (i) and 10(3) (a) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
(ii) The tenants resisted the RCOP.
(iii) During enquiry, the landlord examined himself as P.W1 and marked Exs.P1 to P10. On the side of the respondents/tenants, one Ketki Mothi examined himself as R.W.1 and marked Ex.R1.
(iv) Ultimately, the Rent controller ordered eviction of the tenants on both the grounds.
(v) Aggrieved by the order of the Rent Controller, the tenants preferred appeal before the Appellate Authority for nothing but to be dismissed by the Appellate Authority confirming the order passed by the Rent Controller.
(vi) Challenging and impugning the orders of both the courts below, this revision has been filed by the tenants on various grounds.
4. Heard both sides.
5. The learned counsel for the revision petitioners/tenants placing reliance on the grounds of revision would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(i) The courts below held that even as per the admission of the tenants, there was default in paying a month's rent; but there is no finding that it was willful in nature and that such a finding is perverse.
(ii) Regarding the personal occupation is concerned, no cogent reason was given by the landlord for his personal occupation and the court also did not consider whether the claim of the landlord was bona fide.
Accordingly, the learned counsel for the tenants would submit that both the courts below simply accepting the contention of the landlord ordered eviction of the tenants, warranting interference in this revision.
6. Per contra, in a bid to extirpate and torpedo the arguments as put forth on the side of the tenants, the learned counsel for the landlord would pilot his argument, which could tersely and briefly be set out thus:
Both the courts below appropriately and appositely considered the factual scenario and applied the law correctly and ordered eviction warranting no interference in this revision.
7. The points for consideration are as under:
1. Whether both the authorities below fell into error in holding that non-payment of rent for one month would amount to willful default?
2. Whether both the authorities below fell into error in holding that the claim of the landlord for his personal occupation was bona fide?
3. Whether there is any perversity or illegality in the orders passed by both the courts below?
8. A mere poring over and perusal of the orders of both the courts below would display and demonstrate that the tenants themselves admitted in clear and categorical terms that even as per their calculation there was default in payment of rent for one month
9. The learned counsel for the respondent/landlord would copiously and narratively put forth his case to the effect that the tenant committed wilful default in paying rent from June 2007 to November 2007 and a notice was issued by the landlord to the tenants. Thereafter from December 2007 onwards the tenants started paying the rents and that too upto June 2008 and thereafter the tenants proved to be recidivistos, which necessitated the landlord to file the RCOP during the month of November 2008 for eviction of the tenants on the grounds of wilful default in payment of rent and owner's occupation.
10. The point, which was put forth before the Rent Controller by the tenants was to the effect that a sum of Rs.45,000/- was paid towards advance and that was not adjusted towards rental arrears. No doubt, the law has got settled to the effect that irrespective of the fact whether the tenant insists for adjustment of the advance towards rental arrears or not, the landlord is expected to adjust the advance towards rental arrears barring a month's rent towards advance.
11. In this case, admittedly, the monthly rent is Rs.8,250/-, and the tenants paid to the landlord as advance a sum of Rs.45,000/- and even after such adjustment of the advance, the court held that there was a default in payment of rent for a month.
12. Here it is not the case of any one that unwittingly that default had occurred but consciously the tenants had their own calculation and refrained from paying that one month's rent and that was due payable as on the date of filing of the RCOP. As such, citing the precedents, both the courts below held that there was wilful default on the part of the tenants, warranting no interference. There is a collosal and Himalayan difference between accidentally not paying rent for a month and wilfully not paying rent for a month on the part of the tenant by having his own dubious and questionable calculation of already occurred arrears. Here, indubitably and unassailably there had been huge arrears.
13. The learned counsel for the respondent/landlord without fear of contradiction from the other side would detail and delineate that pending litigation ever since March 2012, the rent was not paid. In such a case that conduct of the tenants also would tantamount to wilful default in view of the following judgments:
(i) (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS relating to the concept 'Willful default.' 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. Further, 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 fully 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 wilful 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.
(ii) One other decision of this court reported in 2000-3-L.W.634 [M/s.Guru Associates rep.by its Partner Mr.Lalithakumar Jain and Lalithakumar Jain vs. B.A.Balasubramaniam]. Certain excerpts from it would run thus:
"11. Under Section 11 (1) of the Act, it is the duty of the tenant to deposit all arrears of rent due in respect of the building upto the date of payment or deposit and continue to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceeding before the Controller or the Appellate Authority, as the case may be, Sub-Section (4) of Section 11 says, if any tenant fails to pay or to deposit the rent as aforesaid, the Controller or Appellate Authority, as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building."
Accordingly, Point No.1 is decided in favour of the landlord and as against the tenants.
14. I would like to fumigate my mind with the following decisions relating to personal occupation and certain excerpts from those decisions would run thus:
1.(1999) 7 SCC 275[T.Sivasubramaniam v. Kasinath Pujari] "4. From the aforesaid decisions it is clear that mere desire of the landlord to live separately from his father cannot be attributed to his need for the premises occupied by the tenant. It is often seen that a desire often takes its origin from what one likes and dislikes and necessarily it is not dependent upon his need. But we cannot lose sight of the fact that sometimes the desire may be the outcome of one's need. So when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bona fide. The need must be bona fide, genuine, honest and conceived in good faith. In the present case what we find is that, it was not pleaded by the landlord in his petition that he for certain compelling reasons desired to live separately from his father and for that reason he required the premises."
2. (2003) 1 SCC 672 [Lingala Kondala Rao vs. Vootukuri Narayana Rao] "6. To disentitle the landlord from claiming eviction under Section 10(3)(a)(iii) of the Act it must be shown that the landlord is in occupation of a non-residential building in the city, town or village concerned and that such building is his own or to the possession of which he is entitled under the Act or otherwise. In case of occupation of property by members of joint Hindu family wherein the interest of a member remains fluctuating depending on the increase or decrease in number of members of the family, it cannot be said that the landlord is in occupation of a non-residential building which expression, in the setting in which it has been used, would mean his own occupation in his own right. On the same reasoning, the non-residential building owned by the joint Hindu family cannot be called a non-residential building which is his own. The expression to the possession of which he is entitled has to be construed as an immediate entitlement to possession so as to satisfy his requirement as stated in (a) and (b) parts of sub-clause (iii). A landlord cannot be expected to dislodge the members of the joint family from their possession over the joint family premises simply because the landlord requires the premises for his own exclusive use. He is not entitled to possession over joint family premises unless he claims partition whereat the suit premises are also allotted to him. In a partition he may or may not be held entitled to possession over the non-residential building pointed out by the tenant as an alternate accommodation and relied on by him for defeating the claim of the landlord. Therefore, a non-residential building owned by the joint Hindu family and in its occupation would not be included within the meaning of the expression which is his own or to the possession of which he is entitled. A non-residential building said to be owned or being under entitlement to possession by the landlord under Section 10(3)(a)(iii) of the Act cannot be just any non-residential building without regard to other relevant factors including the extent of the ownership of the landlord and the remoteness between his entitlement and the occurrence of event when he would actually get possession. In taking this view, we find support from a few decisions of this Court.
7. In M. Padmanabha Setty v. K.P. Papiah Setty1 the Constitution Bench, interpreting the expression entitled to possession in a pari materia provision contained in a Mysore Act held that the expression would not include another tenanted accommodation wherefrom the landlord could evict the tenant by making out a ground for eviction nor would the expression include a building where the landlord has a right to stay till he is evicted. The Constitution Bench held that the object of the Act is to prevent unreasonable eviction of tenants. It cannot be said that the legislature considered it unreasonable for a landlord to shift to his own premises while he is in occupation of the tenanted premises over which he has not an absolute right of possession but only a right to remain in possession.
8. In Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 this Court held that the aspect of quality, size and suitability of the building cannot be totally put out of consideration else the purpose of the Act would be frustrated.
9. In G. Kaushalya Devi v. Ghanshyamdas3 it was held that the expression to the possession of which he is entitled would not mean possession otherwise than as an owner or in that capacity. Tenanted premises in which the landlord was already having his business and hence of which he was in possession and another shop purchased by the mother of the landlord with the amount loaned by him were held not to be buildings which could disentitle the landlord from seeking an order to be put in possession of the tenanted building.
11. It was submitted by the learned counsel for the appellant that the respondent's requirement cannot be said to be bona fide. It was submitted that a Full Bench of the Andhra Pradesh High Court rendered its decision in Vidya Bai v. Shankerlal4 on 24-9-1987 wherein the Court took the view that availability of a non-residential building belonging to a joint family was a relevant factor for denying recovery of possession by the landlord under Section 10(3)(a)(iii) of the Act and shortly thereafter on 24-6-1988 the late father of the respondent executed and registered the deed of settlement conferring title on the respondent. In the year 1991, the father of the respondent died and then the present proceedings were initiated by the landlord. This shows that exclusive ownership over the suit premises vesting in the respondent landlord is a manipulation pointing out to the mala fides. Suffice it to observe that it is too far-fetched an inference to draw that the object behind execution of the registered deed of settlement was the eviction of the appellant tenant, more so, when there is no material available on record to base such an inference. The execution and registration of the deed of settlement is not disputed. In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal. It is pertinent to note that no member of the family adversely affected by the deed of settlement has chosen to lay any challenge to it. Incidentally, it may be noted that the Full Bench decision in Vidya Bai case4 was cited with approval before a two-Judge Bench of this Court in D. Devaji v. K. Sudarashana Rao5. However, the correctness of the decision of this Court in D. Devaji case5 was doubted by another two-Judge Bench (see Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co.6) whereafter the matter came to be considered by a three-Judge Bench in Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 In D. Devaji case5 the view taken by this Court was that the landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature was that the landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover a possession of another non-residential building belonging to him by evicting the tenant therefrom. In Boorgu Jagadeshwaraiah case2 the three-Judge Bench held that the view so taken in D. Devaji case5 was an extremely narrow and literal construction placed on the provision which had the effect of scuttling the intention of the legislature. The view of the law taken by the High Court of A.P. in Vidya Bai case4 becomes, therefore, of doubtful authority."
3. One other decision of this court reported in 2000-3-L.W.901 [Nazeer vs. N.T.Thayammal] also could be fruitfully cited:
"9. The question whether building is required for bona fide own occupation of landlady or not is purely a finding of fact. Both the authorities below have found that landlady is not having any building of her own and she is now residing along with her relatives and her claim is bona fide. Landlady has asserted that she intends to occupy the scheduled building since her relations are also residing closeby. Even during the lifetime of her husband, she was residing with one Putta Gounder and after his death, she went and resided with her brother-in-law temporarily. Now, she is residing with some of her relatives. It is clear from the evidence that only because she is not in a position to occupy scheduled building, she had to reside along with others. A feeling that one is under his own roof and as of right, is a comforting only duly recognised and protected by law and legal institutions. Even if one need not be apprehensive that a close relation like a father or mother, brother or sister may not drive him out of the house owned by any of them, the need felt by the individual to have a separate establishment is a perfectly justified one. Landlady wants to occupy her own building and there is nothing to doubt her bona fide claim."
12. In 1969 K.L.T.133 [Sarada v. Kumaran] a similar question arose for consideration where landlord wanted to make use of building for own occupation for the purpose of converting the same as pathway. Learned Judge in that case held that occupation does not necessarily mean residence. A owner can occupy the building in any manner. Learned Judge said that converting of existing building into a pathway for the use of landlord is also a need and coming under bona fide own occupation. Once landlord gets possession of the building for his own occupation it is not the concern of the court whether it is used as it is or after reconstruction or after making material alterations in the same.
13. Similar view was taken in the decision reported in 1987(1) K.L.T.671 [Devaky v. Krishnankutty), wherein it is held thus:
"Once the landlord establishes that he bona fide requires the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations".
14. Once it is found that the claim of landlady is bona fide, inconvenience or lack of amenities is a matter in which tenant has no say. It is for landlady to look out whether the building is sufficient or whether it should be used after making such alteration, etc."
Here, both the courts below on factual analysis arrived at the conclusion that the landlord being an octogenarian, so to say, 80 years was in need of the premises and there is nothing to indicate and exemplify that he is having any other residential vacant house available for him to occupy in the Chennai city. In such a case, I could no see no perversity in the orders passed by both the courts below warranting interference in this revision.
15. Regarding the bona fide claim of the landlord is concerned, it is both subjective as well as objective in nature. A mere subjective desire on the part of the landlord is not enough, but there should be objectivity concerning his requirement of the demised premises for his personal occupation.
16. Here in this case, the landlord is having no house of his own except the demised premises.
17. Accordingly, I could see no infirmity in the orders passed by both the courts below.
18. In the result, this civil revision petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
19. On hearing the order, the learned counsel for the revision petitioners/tenants would make an extempore submission to the effect that sufficient time, so to say, a year's time might be granted for his client to vacate the premises as it would be difficult for his clients to seek alternate accommodation. Whereupon, the learned counsel for the respondent/landlord would submit that such granting of a year's time would put the landlord, who is an octogenarian in discomfiture and difficulties as he wants to occupy the premises for himself urgently.
20. Hence, by way of striking a balance between the two, and taking into consideration the facts that the tenants would obviously require considerable time to find an alternative accommodation and also the age of the landlord, I would like to grant six months' time from this date to vacate and hand over vacant possession of the demised premises to the landlord, subject to payment of rent regularly including arrears of rent and future rent till handing over possession. The petitioner shall file an affidavit to that effect within 15 days from today.
vj2 To
1. The VIII Judge, Court of Small Causes, Chennai
2. The XVI Judge Court of Small Causes, Chennai