Ayyamperumal vs Shaik Dawood Rowther

P.D. Dinakaran, J.—The above revision is directed against the order dated 28.2.1994 made in R.C.A.No.8 of 1990 on the file of the

learned Rent control Appellate Authority (Principal Sub Judge), Tiruchirapalli, confirming the order dated 30.11.1989 made in R.C.O.P.No.292

of 1982 on the file of the learned Rent Controller (3rd Additional District Munsif), Thiruchirapalli.

The unsuccessful landlord before the authorities below is the revision petitioner in the above revision who filed the above R.C.O.P. seeking

eviction of the respondent-tenant under Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for an alleged wilful default in the

payment of rent for 46 months, from 16.8.1978 to 16.6.1982 at the rate of Rs.100 per month.

The defence put forth by the respondent tenant for the said wilful default in paying the rent for 46 months for the period from 16.8.1978 to

16.6.1982, as weighed by the authorities below, are:

(a) the revision petitioner-landlord was a borrower of money from the respondent-tenant and therefore, the rent payable during the said period

were adjusted; and

(b) the respondent-tenant was constrained to pay the property tax with respect to the petition premises as he was facing a distraint notice for non-

payment of the property tax issued by the Municipality, which is marked as Ex.R-3.

The courts below, placing reliance on the decision of this court in Yousuf v. Akbar Ali, 1986 T.L.N.J. 114 held that non- payment of rent by the

respondent-tenant cannot be termed as wilful default, within the meaning of Section 10(2)(i) of the Act, in view of the fact that the respondent-

tenant had paid the property tax payable towards the petition premises, assuming there was any agreement for such adjustment. Hence, the above

revision.

The learned counsel for the revision petitioner brought to my notice that the alleged borrowal of money by the revision petitioner-landlord from

the respondent-tenant was ultimately decided in a suit filed by the respondent-tenant in O.S.No.599 of 1978 on the file of the Sub Court, Trichy,

which was decreed on 6.1.1981 in favour of the revision petitioner-landlord and also got executed in E.P.No.240 of 1983 and therefore, the

respondent-tenant is not entitled to claim that he has not committed wilful default in paying the rent for the said 46 months at the rate of Rs.100 per

month.

The learned counsel for the revision petitioner contends that the authorities below erred in overlooking the binding force of explanation to

sec.10(2)(i) of the act, particularly in the light of an order of the authority made in I.A.No.407 of 1993 under Sec. 11(4) of the act, wherein the

respondent-tenant was directed to deposit the rent in the court.

The learned counsel for the revision petitioner, placing reliance on the decision in Shabul Hammed and four others v. Rasool Bivi, 1993 (2)

L.W. 583 contends that the order of the authorities under statute made under Sec.11(4) of the act, determines the liability of the ""respondent -

tenant in paying the rent and thereafter, there cannot be any exception to dilute a wilful conduct of the respondent-tenant for non- payment of the

rent, under the pretext of the payment of the same towards property tax.

Per Contra, learned counsel for the respondent-tenant, taking note of the fact that the suit O.S.No.599 of 1978 filed by the respondent-tenant

was decreed by the learned subordinate judge, Trichy on 6.1.1981 and the same was executed in E.P.No.240 of 1983, restricted his submissions

only with regard to the fact that the respondent-tenant had made the payment of property tax, in view of the compelling circumstances under Ex.R-

3 wherein the respondent-tenant was served with distraint notice for the non-payment of the property tax and therefore, contends that the payment

of property tax with regard to the petition premises has cured the defect of default in the payment of rent as bonafide and hence, there is no wilful

default on the part of the tenant, as contemplated under Sec.10(2)(i) much less the explanation thereto.

I have given careful consideration to the submission of both sides.

I am obliged to refer Sec.10(2)(i) of the Act and the explanation thereto, which reads as follows:

A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the controller, after giving the tenant a

reasonable opportunity of showing cause against the application is satisfied

(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the

agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent

is payable or.

Explanation: For the purpose of this sub-section, default to pay or tender rent shall be construed as if wilful, if the default by the tenant in the

payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent.

It is true, this court in Yousuf v. Akbar Ali, 1986 T.L.N.J. 114. had occasion to consider the defence taken by the respondent-tenant that the

payment of the property tax would cure the default as bona fide and therefore, non-payment of rent on that account cannot be termed as wilful. In

the said decision, it is held as follows:

According to the Appellate Authority, the respondent had not stated that the petitioner agreed to adjust the tax paid by him towards the rent. I

have already pointed out that such an approach by the Appellate Authority cannot be supported on the evidence in this case. Even otherwise, the

default in the circumstances, cannot be termed wilful. After all, the tenant had paid the tax in respect of the petition property belonging to his

landlord, respondent, because, he was called upon to pay the tax. Assuming that there was no agreement as such to adjust the payment of tax

towards rent, when the tenant has paid such tax. I am clearly of the opinion that the tenant was under the bona fide impression that such payment

could be adjusted towards the rent payable by him. Then the non-payment of rent, in the circumstances, will not amount to ""wilful default"" in the

payment of rent. Thus, in any view of the matter, it cannot be said that the tenant has committed wilful default.

However, in the latest decision, this Court in Shabul Hammed and four others v. Rasool Bivi, 1993 (2) L.W. 583, while dealing with a case,

where the tenant paid the property tax inspite of an order of the authority under the Act directing him to pay the rent under Sec.11(4) of the Act,

but the tenant continued to pay the property tax, held as follows:

Held, after the petition for eviction was filed, there cannot be any contract between the landlady and the tenant for payment of house tax by the

tenants. There is also no evidence to show that the Municipal Authority demanded the house tax from the tenants. When the Rent Control

Appellate Authority specifically directed them to deposit the arrears of rent in court, tenants have no business to pay the house tax and plead for

adjustment of the same in the arrears of rent. Even after payment of house tax, still there would be some balance of amount payable towards

arrears of rent. Therefore, this plea of the tenant that they paid the house tax and the same was adjusted towards the arrears of rent, cannot be

accepted.

In my considered opinion, once there was an order of the authorities directing the respondent-tenant to pay the rent to the landlord, there is no

option left out to the respondent-tenant to pay the property tax and then claim that non-payment of the rent cannot be construed as wilful unless

and otherwise be seeks the permission of the authorities to pay the property tax in lieu of rent payable as per the order made in the petition under

Sec.11(4) of the act. In other words, the explanation provided under Sec.10(2)(i) of the act would become totally redundant and inoperative.

When the legislature has removed the doubt by incorporating the explanation stating that if the tenant failed to deposit the rent inspite of notice

issued by the landlord directing the tenant to pay the rent and the tenant still fails to comply with the request, there cannot be further option left out

for the tenant to make his own arrangement and later on claim that he was bona fide in adjusting the rent towards the property tax paid by him and

therefore, non-payment of the rent is not wilful. In the instant case, the record would show that the tenant had gone further in committing default

wilfully by diverting the rent payable to the revision petitioner-landlord, as directed by the authorities under Sec.11(1) and paying the same towards

the property tax and therefore, his wilful default cannot be cured at any cost, particularly, when Ex.B-3, which is relied upon by the respondent-

tenant itself is dated 2.12.1990 when the wilful default claimed by the revision petitioner/landlord for 46 months is for the period from 16.8.1978 to

16.6.1982 and this aspect of the case has not been properly considered by the authorities below.

Under the facts and circumstances of the case, I am satisfied that the amount of the respondent-tenant in committing wilful default in the

payment of rent for 46 months for the period from 16.8.1978 to 16.6.1982 was not be justified, even in the light of the decision of this court in

Yousuf v. Akbar Ali, 1986 T.L.N.J. 114, relied upon by the learned counsel for the respondent-tenant inasmuch as the distraint notice served on

the respondent-tenant, namely, Ex.R-3 dated 2.12.1990. Hence, the orders of the authorities below are set aside. R.C.O.P. is allowed.

At this point of time, learned counsel for the respondent-tenant undertook to file an affidavit by the respondent-tenant within two weeks from

today to vacate and hand over the petition premises within six months from today.

Considering the fact that the respondent-tenant was in occupation of the premises for the last twenty years and the respondent-tenant had also

paid property tax, I am obliged to grant six months time to vacate and hand over the vacant possession of the petition premises to the revision

petitioner and also expect the revision petitioner landlord to settle the legitimate dues payable to the respondent-tenant without dragging for

separate proceedings, provided the respondent-tenant files an affidavit of undertaking to that effect within two weeks from today. In the result,

revision is allowed. No costs.