Madras High Court
Loganatha Mudaliar vs Raghunathlal .... 1St on 9 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).Nos.2021 to 2023 of 2012 and M.P.Nos.1,1 and 1 of 2012 Loganatha Mudaliar .... Petitioner in all the CRPs. vs. 1. Raghunathlal .... 1st respondent in all the CRPs. 2. Niyamathulla .... 2nd respondent in CRP Nos.2021 and 2022 of 2012. Civil revision petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18/1960 as amended by Act 23/1973 as against the common judgment and decrees dated 17.02.2012 passed by the learned Subordinate Judge, (Rent Control Appellate Authority), Vellore, in R.C.A.Nos.10/2007, 12 of 2007 and 2 of 2008 in (i) reversing the fair and decreetal order dated 05.04.2007 in RCOP No.36 of 1999, (ii) partly allowing the order and decree dated 05.04.2007 in RCOP No.36 of 1999 and (iii) confirming the order and decree dated 05.04.2007 in RCOP No.85 of 1999 passed by the learned Principal District Munsif (Rent Controller), Vellore. For Petitioner : Mr.M.Rajendran in all the CRPs For Respondent 1 : Mr.D.Dharamchand Jain in all the CRPs For R2 in CRP : No appearance Nos.2021 and 2022 of 2012 COMMON ORDER
Animadverting upon the common judgment and decrees dated 17.02.2012 passed by the learned Subordinate Judge, (Rent Control Appellate Authority), Vellore, in R.C.A.Nos.10/2007, 12 of 2007 and 2 of 2008 in (i) reversing the fair and decreetal order dated 05.04.2007 in RCOP No.36 of 1999, (ii) partly allowing the order and decree dated 05.04.2007 in RCOP No.36 of 1999 and (iii) confirming the order and decree dated 05.04.2007 in RCOP No.85 of 1999 respectively passed by the learned Principal District Munsif (Rent Controller), Vellore these three civil revision petitions have been focussed by the tenant.
2. A thumbnail sketch of the germane facts, in a few broad strokes can be encapsulated thus:
(i) The first respondent-Raghunathlal/the landlord filed the RCOP No.36 of 1999 seeking eviction of the revision petitioner/tenant on the grounds of willful default, sub-letting, different user and act of waste by invoking Sections 10(2)(i), 10(2)(ii)(a), 10(2)(ii)(b) and 10(2)(iii) of the Tamil Nadu Buildings Lease and Rent Control Act (hereinafter referred to as the 'Act' for short). The matter was contested.
(ii) Whereas the revision petitioner/tenant filed the RCOP No.85 of 1999 under Section 8(5) of the Act seeking permission to deposit the rent in court.
(iii) The matter was resisted.
(iii) During the joint enquiry, on the side of the first respondent/landlord, P.Ws.1 and 2 were examined and Exs.A1 to A9 were marked. On the side of the revision petitioner/tenant, R.Ws.1 to 4 were examined and Exs.B1 to B9 were marked.
(iv) Ultimately, the Rent controller allowed the RCOP No.36 of 1999 filed by the landlord and gave a finding to the effect that there was willful default in paying the rent in favour of the landlord and that the tenant also sub-let the premises for textile shop even though the tenancy was in favour of the tenant for running his shroff business. The other two grounds, viz., different user and act of waste were held to be not proved.
(v) The Rent Controller also dismissed the RCOP No.85 of 1999 filed by the revision petitioner/tenant for deposit of rent in court on the ground of technicalities.
(vi) Being aggrieved by and dissatisfied with the orders of the Rent Controller, the tenant preferred two appeals in RCA.Nos.10 of 2007 and 2 of 2008 and the landlord preferred RCA No.12 of 2007 being aggrieved by the dismissal of the RCOP on the ground of different user and act of waste.
(vii) All the three RCAs were heard together and ultimately, the Rent Control Appellate Authority dismissed the appeals filed by the tenant and partly allowed the appeal in RCA No.12 of 2007 filed by the landlord on the ground of different user and rejected the ground of act of waste.
(viii) Challenging and impugning the orders of both the courts below, these three revisions have been filed by the tenant on various grounds.
3. Heard both sides.
4. At the time of hearing, the learned counsel for the first respondent/landlord would fittingly and appropriately raise the point that ever since the time of filing of the RCOP, the admitted rents were not paid and that itself would disentitle the tenant from prosecuting his case before this court.
5. The learned counsel for the revision petitioner/tenant would not venture to say anything that the statement as putforth on the side of the landlord relating to non-payment of rent pendente lite was wrong.
6. It is therefore crystal clear that such non-payment of rent would attract eviction.
7. I would like to fumigate my mind with the following decision of the Hon'ble Apex Court reported in (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. As such, as per the aforesaid precedent these revisions also may be dismissed. However, in order to comprehensively decide the other issues involved in this case, I would like to formulate the following points for consideration:
1. Whether there is any perversity or illegality in the orders passed by both the authorities below in ordering eviction based on willful default and sub-letting?
2. Whether both the courts below committed error in not allowing the tenant to invoke Section 8 (5) of the Act?
8. Both these points are taken together for discussion as they are inter-linked and inter-woven with each other.
9. As on the date of filing of the RCOP, there were three months arrears of rent at Rs.1,100/- per month. However, the tenant would contend that even though such rent was tendered, it was refused by the landlord.
10. At this juncture, I would like to re-collect and call-up the following decision of the Hon'ble Apex Court reported in (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], and certain excerpts from it would run thus:
"4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.
5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu 2.
6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) 8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.
7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
(ii) I would also like to cite 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."
It is therefore crystal clear from the decision of the Hon'ble Apex Court that the tenant cannot take shelter by saying that the landlord refused to receive the rent. The tenant on seeing that the landlord refusing to receive the rent should resort to the procedure contemplated under the Rent Control Act. But, in this case the tenant had not taken such steps. No doubt, even on the filing of the RCOP, the tenant had not chosen to deposit the rent. The application under Section 8(5) of the Act was filed by the tenant, pending the RCOP filed by the landlord, but the procedure contemplated in the Act was not adhered to. There is also nothing to indicate and exemplify that there is any error in the order passed by the courts below in view of the decision of the Hon'ble Apex Court reported in (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others].
11. Relating to sub-letting is concerned, the learned counsel for the landlord would appropriately and appositely, highlight and spotlight the fact that at one breath the tenant would come forward with the plea as though the sub-tenant, viz., the second respondent herein was a partner and in another breath, he would say that he is a clerk under him. Considering the prevaricative stands of the tenant, both the courts below appropriately held that there was sub-letting.
12. As such, I could see no plausible explanation forthcoming from the tenant in this case. Hence, I am of the considered view that the orders passed by both the courts below warrant no interference in these revisions.
13. Accordingly, all the three revisions are dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
14. On hearing the order, the learned counsel for the revision petitioner/tenant would make an extempore submission to the effect that six weeks' time might be granted for vacating the demised premises.
15. Taking into consideration the fact that nowadays, the tenant would obviously require some considerable time to find an alternate accommodation, I would like to grant six weeks' time as prayed by the revision petitioner/tenant from this date to vacate and hand over the vacant possession of the demised premises to the landlord, subject to payment of arrears of rent and also future rents without any default regularly till handing over of possession of the premises concerned. The petitioner shall file an affidavit to that effect within 15 days from today.
vj2 To
1. The Subordinate Judge, Vellore
2. The Principal District Munsif, Vellore