A. Vasudevan vs S Ramasubramanian and 3 others

Sivasubramaniam, J.—The unsuccessful tenant in R.C.O.P. No. 2185 of 1984 on the file of the Learned Rent Controller (XIII Judge, Court

of Small Causes), Madras and in the appeal in R.C.A No. 562 of 1986 on the file of the appellate authority (VIII Judge, Court of Small Causes),

Madras is the petitioner in this revision petition and the respondents herein are the landlords. The respondents landlords filed the petition for

eviction on the ground that the tenant has committed wilful default in the payment of rent and that they require the building for demolition and

reconstruction They contended that the tenant committed default in the payment of rent for the period from April 1983 to September 1983 and

that the tenant had deducted Rs. 625 towards expense alleged to have been incurred by him to effect repairs to the pipelines in the petition

premises and deducted another sum of Rs. 94.37P. towards the amount alleged to have been paid by him as house tax. According to the

landlords, the tenant is not entitled to effect any repairs without their permission or to pay house tax without their permission. Therefore, the

deductions made by the tenant are unauthorised and his failure to pay the entire arrears amounts to wilful default.

The tenant resisted the petition contending inter alia that the obtained specific permission from P.R. Srinivasan, who is acting as the Power Agent

for the landlords, for repairing the pipe line. According to him, the said Srinivasan inspected the pipe line and agreed for the tenant incurring

expenses for carrying out the repairs to the Corporation tap and adjusting the expenses so incurred from and out of the rents payable by him. He

never expected that the said Srinivasan would go behind his promise and take advantage of his own wrong. He never questioned the expenses

incurred by the tenant. It was further contended that the tenant paid the arrears of Corporation tax as required under the rules as otherwise the

property will be destrained. The landlords never questioned the propriety of the tenant in paying the amount for repairing pipes and that it would

show that there was consent by the landlords. In any event, this cannot be characterised as wilful default in the strict sense of the term. The

landlords gave up the ground relating to the requirement under S. 14 (1)(b) of the Act, and therefore, the only question that was considered by the

Learned Rent Controller was about the alleged wilful default.

The learned Rent Controller, after having considered the evidence let in by the parties, came to the conclusion that the landlords had not

authorised the tenant to spend any amounts for repairs or for payment of the Corporation tax and therefore, the default committed by him in the

payment of rents is wilful. Consequently, he allowed the petition and ordered eviction. As against the said order, the tenant preferred the appeal in

R.C.A. No. 562 of 1986 and the appellate authority also came to the same conclusion and dismissed the appeal. Aggrieved against this decision,

the tenant has preferred this revision petition.

Mr. U.N.R. Rao, learned counsel appearing for the petitioner in his persuasive arguments submitted that the matter under consideration relates

to a human problem and, therefore, this Court should give a liberal interpretation to the term ""wilful default"". It is not in dispute that the tenant did

not pay the rent for the period from April 1983 to September, 1983 and he pleads only certain adjustments and that only a balance of Rs.

180.63P, was sent to the landlords. The total amount payable for the relevant period is Rs. 900 at the rate of Rs. 150 per month. According to the

tenant, there was scarcity of water and that he was not able to get sufficient water due to the worn out condition of the Corporation Pipe.

According to him, he effected repairs after taking oral permission from the said P.R. Srinivasan. He claims to have written Ex. B4 intimating the

landlords about the repairs and that in spite of that, the landlords did not come forward to effect repairs. It was only thereafter he spent a sum of

Rs. 625 towards repairs which are found to be essential to get the supply of water for his household. Apart from the said expenses, he claims to

have paid a sum of Rs. 94.37 towards house tax to the Corporation. After deducting this amount, he sent a cheque for Rs. 180.63 P. on 12-10-

1985. The landlords, after having received the amount, sent a reply objecting to the said deductions made by the tenant. It is seen that even though

the tenant now claims that he had requested the landlords to effect repairs and that they had defaulted in doing so, there is nothing to show that

such a letter was sent by the tenant. Ex. B4 does not establish this fact. But on the other hand, it shows that he wrote to the landlords stating that

he was going to effect repairs and deduct the expenses. The tenant, who has been examined as R.W. 1 has admitted that he had not obtained any

written permission from the landlords and that he did not send receipt to the landlords for having incurred the said expenses. It is also established

that the house tax was paid for the half year of 83-84. Even though the tenant has claimed that he had paid the amount on receipt of an occupier

notice from the Corporation, no such notice has been filed. Ex. B6 filed by him relates to the second half-year of 1981-82 and the first half-year of

1982-83. Admittedly, there was no notice from the tenant asking the landlords to pay this amount to the Corporation. On a consideration of those

relevant factors, the authorities below have come to the conclusion that the tenant has committed wilful default in the payment of rent.

Mr. U.N.R. Rao, Learned counsel for the petitioner further submitted that even though the tenant was not justified in deducting the rents, he did

so under the bona fide impression that he was entitled to do so. In those circumstances, it cannot be construed that the default is wilful. It was

pointed out to him that such a contention could be countenanced if the tenant had deposited the rents into Court immediately after coming to know

that the landlords had raised objections for the same. It is seen from the orders of the authorities below that the tenant offered to pay the amount

both before the learned Rent Controller and be fore the appellate authority. But till date, the amount has not been deposited. This shows lack of

bona fides on the part of the tenant. In the absence of such a deposit by the tenant, it is not possible to hold that he has not committed wilful default

in the payment of rent. Learned counsel relied on the decision Rama-prasada Rao, J. as he then was reported in N.S. Ramamoorthy v. N.S.

Lakshmana Achary 1974-II-M.L.J. (S.N.) 3.. I have called for the original order in C.R.P. No. 2052 of 1972 and perused the same. In that case,

the learned Judge held as follows:-

The amenity provided for in the instant case by the tenant is the provision of a water tap and causing minor repairs to the building. A major portion

of the arrears went into the liquidation of the taxes payable by the absentee-landlord. When the petitioner-tenant has, out of necessity, installed a

water tap which ultimately goes to the benefit of the property of the respondent, can it be said that such an expenditure incurred by him which has

resulted in the non-payment of the prorata rent for the months in question would automatically be viewed as wilful default in payment of rent? After

all there must be an element of conscious evidence of payment, of rent by a tenant which alone would come within the purview of the expression

wilful"". When in a case where a tenant provides an amenity such as water tap which the landlord did not provide and consequentially makes

certain minor repairs to the building, it cannot be said that there was a deliberate attempt on the part of the tenant to withhold the rents from the

landlord. This is certainly not a case of a tenant being characterised as having been supinely indifferent in the matter of payment of the rents...

In answer to the said contentions, Mr. R.S. Venkatachari, learned counsel for the respondents landlords relied on the provisions of S. 22 of the

Madras Buildings (Lease and Rent Control) Act 18 of 1960 which reads as follows;-

Failure by landlord to make necessary repairs:-

(1) If a landlord fails to make necessary repairs to the building within a reasonable time after notice is given-

(a) by the authorised officer in the case of a building in respect of which the Government shall be deemed to be the tenant under sub-S.(5) of S.3;

(b) by the tenant in the case of any other building;

the authorised officer aforesaid may, in the case referred to in clause (a), make such repairs or have them made by the allottee and deduct the cost

thereof from the rent payable for the building or ask the allottee to make such a deduction from the rent payable; and the Controller may, in the

case referred to in clause (b) direct, on application by the tenant, that such repairs may be made by the tenant and that the cost thereof may be

deducted and that the cost thereof may be deducted by the tenant from the tenant payable for the building;

Provided that the cost of repairs, and the deduction thereof which the authorised officer or the Controller, as the case may be, may authorise shall

not exceed in any one year one-twelfth of the rent payable in respect of the building for that year.

(Sub-S.(2) omitted in this order).

It was submitted that in view of the positive provision in the Act, in case of default by the landlord in making necessary repairs to the building,

within a reasonable time after notice by the tenant, the only remedy available to the tenant is to approach the learned Rent Controller and get an

order as contemplated under this section. There is also a ceiling for the expenses that can be incurred by a tenant. According to this section, such

expenses shall not exceed in any one year one-twelfth of the rent payable by the tenant. The scope of S. 22 of the Act has been considered by

Balasubramanyan, J. in V. Rama-manickam v. Avilamal Ammal 1980-II-M.L.J. (S.N.) 17., where it was held that since S. 22 provides for

adjustment of repairing charges only upto a maximum amount equal to one month''s rent, no argument even of a bona fide belief on the basis of

S.22 could be put forward in cases where the expenses exceeded one month''s rent. It was further held as follows;-

The mere fact that the tenant had carried out the repairs and the mere circumstances that he might possibly have a claim against landlord for

reimbursement could not provide him with any lawful excuse for withholding the payment of rent.

This question was again considered by Fakkir Mohammed, J., in Associated Traders and Engineers Ltd., v. Alamelu Ammal 1984 (I) M.L.J. 251,

wherein the learned Judge took the view that the fact that the consent of the landlord is paramount for spending any portion of rent towards

execution of repairs to the demised building will be seen from the provisions of the Rent Control Act to the effect that in case the landlord is not

willing to execute repairs to the building, the tenant should obtain the permission of the Rent Controller before spending any amount by way of

repairs to the building. The same view was expressed by Chinnappa Reddy, J., as he then was, in C. Subba Rao v. N. Venkamma 1979 (II) An.

W.R. 446, while dealing with the similar provisions in the Andhra Pradesh Rent Control Act. With respect, I fully endorse the view taken by the

learned Judges in the said decisions as the statute itself provides the procedure and restrictions in the matter of effecting repairs to the buildings

coming under the purview of the Act. Therefore, it is not possible to give any interpretation to the meaning of S. 22 of the Act in such a way as to

take away the effect of the said provision. Unfortunately, the provisions contained in S. 22 Were not brought to the notice of Ramaprasada Rao,

J., as he then was, in N.S. Ramamoorthy v. N.S. Lakshmana Achary 1974 (II) M.L.J. (S.N.) 3, and therefore, the said decision cannot be taken

to be a decision in accordance with S.22 of the Act. The authorities below have found that the case of oral consent given by the landlords is not

true. On this basis, the authorities below have concurrently found that the tenant has committed wilful default in the payment of rent. I do not find

any grounds to interfere with such concurrent findings of fact which are in confirmity with the provisions of law. There are no merits in this revision

petition and, therefore, it is dismissed. No costs. However, taking into consideration of the difficulties of the tenant in securing an alternative

accommodation in the city of Madras, he is given eight months'' time from this date, with the consent of the learned counsel for the landlords, to

vacate the petition premises and put the landlords in possession of the same, on condition the petitioner files before this Court within two weeks

from this date, affidavit undertaking to vacate the premises and put the landlords in possession of the same before the expiry of the said period,

failing which the respondents are entitled to execute the order of eviction.