B. Sarojini vs Rajeswari Subramaniain and 4 others

K. Natarajan, J.—C.R.P. No. 1563 of 2000 has been preferred by the revision petitioner/tenant against the fair and decretal order in

R.C.A. No. 86 of 1991 on the file of the II Addl. Subordinate Judge-cum-Appellate Authority, Coimbatore, confirming the order and decree,

dated 29.7.1991 in R.C.O.P. No. 108 of 1987 on the file of the I Addl. District Munsif-cum-Rent Controller, Coimbatore. C.R.P. No. 1564 of

2000 has also been preferred by the revision petitioner/tenant against the fair and decretal order, dated 17.12.1999 in R.C.A. No. 28 of 1992 on

the file of the II Addl. Subordinate Judge-cum-Appellate Authority, Coimbatore confirming the decretal order, dated 29.7.1991 in R.C.O.P. No.

43 of 1987 on the file of the I Addl. District Munsif-cum-Rent Controller, Coimbatore.

R.C.O.P. No. 108 of 1987, from which C.R.P. No. 1563 arise, had been filed by the petitioners/landlord for eviction against the

respondent/tenant u/s 10(2)(i) read with Section 10(2)(ii)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

(hereinafter referred to as ''the Act'' for short) on the ground the shop bearing old Door No. 366, New Door No. 685, Raja Street, Coimbatore

was leased to the tenant on a monthly rent of Rs. 210/-. The petitioners had right of access to an extent of 5-1/2 feet x 45 feet in the shop premises

to reach the main road. The shop had been leased for running ghee business and the tenancy commenced on 28.3.1983. The tenant committed

willful default in the payment of rent for the period from 1.3.1986 to 21.3.1987 amounting to a sum of Rs. 2,730/-. Further, against the purpose

for which it was let out, the tenant put the premises to different user, namely, for residential purpose. She also committed acts of waste by changing

the door by shifting it. The tenant resisted the petition stating that there was no willful default in the payment of rent and the allegation that she put

the premises to different user and committed act of waste is false.

R.C.O.P. No. 43 of 1987 had been filed by the tenant u/s 9 of the Act praying to deposit the rent in Court, as he is unable to know from the

first respondent, who had let out the premises, as to whether he had executed the settlement deed in favour of his wife, the second respondent and

he is under a bona fide doubt as to the person entitled to receive the rent. The respondents resisted the petition stating they never refused to

receive the rent as agreed and they also did not direct the tenant to deposit the rent in Court. There was absolutely no misunderstanding between

the parties as to the receipt of the rent and the petition u/s 9 of the Act was misconceived.

The learned Rent Controller-cum-District Munsif, Coimbatore took both the petitions together, as the parties are the same and the subject

matter is also the same. On an appreciation of the evidence placed before him, he reached the conclusion that the tenant has not only committed

willful default, but also was irregular in the payment of rent even after the institution of the petition for eviction. He also found that the tenant had put

the premises to different user and the act of waste has been proved. He further reached the conclusion that there is no acceptable evidence to

show the landlord refused to receive the rent and a situation arose for the tenant to deposit the rent in Court. Therefore, he allowed R.C.O.P. No.

108 of 1987 and ordered eviction and dismissed R.C.O.P. No. 43 of 1987.

Aggrieved with the said fair and decretal order in both the petitions, the tenant preferred R.C.A. Nos. 86 of 1991 and 28 of 1992. The learned

Subordinate Judge-cum-Rent Control Appellate Authority, who heard the appeals, on a re-appraisal of the evidence and for the reasons assigned

by him in the common judgment, concurred with the finding of the learned Rent Controller that the tenant had committed willful default in the

payment of rent and also put the premises to different user. However, he found the allegation that the tenant had committed acts of waste has not

been satisfactorily established. Ultimately, he confirmed the order of eviction. He was also of the view that the petition filed by the petitioner u/s 9

of the Act was misconceived and dismissed the other appeal also, which has given rise to the present civil revision petitions.

The learned counsel for the revision petitioner/tenant submitted before me that the agreed rent for the premises is only Rs. 210/-, whereas the

landlord was having a sum of Rs. 2500/- as advance. Under the provisions of Section 7 of Act, the landlord is entitled to collect only a month''s

rent as advance. Basing reliance on the ruling of the Supreme Court of India reported in 1996-2-L.W. 156 (K. Narasimha Rao v. T.M.

Nasimuddin Ahmed), it was contended that the landlord should have adjusted the rent which was lying in his hands as advance against the arrears

of rent and if such a calculation is made, the tenant was in arrears for a period of one month only, which cannot be said to be willful. In the last

portion of paragraph 7 of the said decision, it has been held:

Cl. (a) of sub-section (2) enacts that a landlord is entitled to claim and receive only the agreed rent, which was Rs. 150/- per month in this case.

The proviso to clause (a) permits the landlord to receive by way of advance an amount not exceeding one month''s rent only i.e. Rs. 150/- in the

present case. Cl. (b) provides for the situation where the any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided

in Cl. (a) i.e., any sum paid in excess of the agreed rent and an amount not exceeding one month''s rent by way of advance. Cl. (b) enacts that the

amount in excess of the sum which the landlord is permitted to take under Cl. (a) shall be refunded by the landlord to the person by whom it was

paid, i.e., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, Cl. (b) requires that the excess

amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to

otherwise adjust the excess amount.

It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being

immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount undoubtedly is that it is the

tenant''s money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenant''s option. Any

other stipulation in contravention to it has no legal effect being null and void.

In Modern Hotel, Gudur, represented by M.N. Narayanan v. K. Radhakrishnaiha and others (1990-1-L.W.560), it has been held by the

Supreme Court that in view of the provision u/s 7(3) of the Act, the stipulation that the advance amount collected in excess of one month''s rent will

be refundable at the end of the tenancy is null and void, then the amount so collected from the premises became payable to the tenant immediately.

The learned counsel for the revision petitioner further contended that both the Courts below have failed to take notice of the rulings of the Supreme

Court cited above and committed an error in holding that the tenant has committed wilful default in the payment of rent. However, he had

submitted that the petition u/s 9 of the Act by the tenant to deposit the rent in Court had not been done as per the provision laid down under the

Act, as no notice had been issued to the landlord requiring him to furnish the bank in which the amount has to be deposited and that he had refused

to accept the rent and the petition filed by the tenant is not in conformity with the provisions of Section 9 of the Act.

Per contra, the learned counsel for the landlord invited the attention of this Court to the judgments of the Courts below and pointed out that both

the Courts have recorded a finding concurrently that the tenant was not only in arrears for the period from 1.3.1986 to 31.3.1987, but was also in

arrears during the subsequent period, namely, even after the petition for eviction was filed.

The attention of this Court was invited to the evidence of the tenant, wherein, the husband of the tenant Balasubramaniam stated that the tenant was

in arrears of rent from 1.6.1986 to 31.5.1991, i.e., for a period of 63 months, which amounts to Rs. 13,230/-. It is his further evidence that he

deposited the said arrears in Court in instalments, namely, Rs. 2310/-, Rs. 1470/-, Rs. 2,000/-, Rs. 4200/- and by Pay Order on the Punjab

National Bank for Rs. 630/-. The learned counsel for the landlord submitted that the interpretation given by the learned counsel for the tenant in

respect of the ruling in 1996-2-L.W.159 S.C. cited supra, is incorrect. It is no doubt true that Clause (b) of Section 7 of the Act requires the

landlord that the excess amount paid to him has to be refunded by the landlord to the tenant, unless the tenant exercises the option of requiring the

landlord to otherwise adjust the excess amount. In the case on hand, at no time the tenant required the landlord to refund the excess amount or

exercised his option and directed the landlord to adjust the excess amount towards the arrears of rent payable by him. Unless the option is

exercised, the landlord was not under any obligation to adjust the excess amount in his hands. In Poorman''s Depot Vs. P.R.M.A. Krishnan, on

similar facts, a learned Judge of this Court has held at the end of para 10 as follows:

The tenant is bound to pay the rent regularly as agreed. The subsequent conduct of the tenant can be taken into account to come to a conclusion

whether there was any supine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available on record

would prove that the tenant was in the habit of paying the rent irregularly. There is no wrong in taking into consideration of the cumulative effect of

the conduct of the tenant in payment of the rent to assess the nature of default. The appellate authority has applied his mind with respect to the

documents and evidence to come to the conclusion that the tenant has committed default in payment of rent wilfully. In the circumstances of the

case and on the basis of the evidence on record I am not in a position to take a different view.

The same position has been reiterated in B. Anraj Pipadda v. V. Umayal (1998-3-L.W. 159). The learned counsel for the revision

petitioner/tenant was unable to explain as to how the tenant has not committed any wilful default in the payment of rent in the face of the admission

in the evidence. The default in the payment of rent had been committed not for one or two months, but for a period of 63 months. Both the courts

below have concurrently found that the tenant had committed wilful default not only to the period in question, but even after the filing of the petition,

which fact has become final and no interference is called for by this Court. The legal position submitted by the learned counsel for the appellant, in

my opinion, is incorrect and the principles of law laid down in 1990 (1) L.W. 560 S.C. cited supra, are not applicable to the facts of the present

case. The tenant never opted that the amount in excess of one month''s rent has to be adjusted towards the rent. Even assuming for the sake of

argument, the tenant had exercised such an option after retaining one month''s advance, the excess amount was not sufficient to discharge the entire

arrears of rent and still there is a balance and, therefore, I am clearly of the opinion that the tenant has committed wilful default in the payment of

rent and both the Courts below are correct in rendering such a finding.

So far as the contention that the tenant had put the premises to different user, I am unable to agree with the finding of the courts below. Except

the ipse dixit of the landlord that the tenant had put the premises to different user, namely, for residential purpose, there is absolutely no evidence to

show that the tenant was cooking food in the premises or taking bed along with the family. Therefore, I am of the view that the finding the premises

had been put to different user has been rendered on no evidence and the said finding has to be reversed and the same is accordingly reversed. In

view of the discussion and the finding that the tenant had committed wilful default in the payment of rent and the petition filed by the tenant u/s 9 of

the Act is not in conformity with the provisions of law, as stated by the learned counsel for the appellant himself, in the result, both the revision

petitions are dismissed with costs Time for vacating the premises is 15 days from today. Consequently, the connected miscellaneous petition is also

dismissed.