C.K.R. Murugan vs T.S. Arunagiri and Another

S.S. Subramani, J.—Landlord in R.C.O.P. No. 398 of 1991, on the file of X Judge, Small Causes Court, Madras, is the revision petitioner.

The only ground that survives for consideration in this revision is, whether the tenant is liable to be evicted on the ground that he has committed

wilful default in payment of rent.

According to landlord, eviction petition was filed in 1986 in R.CO.P. No. 2169 of 1986 against respondents on the grounds of sub-letting,

conversion and acts of waste, and the same was allowed. There was also another rent control petition for fixation of fair rent. It is the case of the

landlord that in spite of pendency of the said proceedings, and in spite of warnings to pay rent regularly, tenant did not take care to pay rent

regularly in time, but paid the same irregularly and improperly. Petitioner/landlord did not take action then and there itself considering their

relationship and pendency of proceedings, and also with a view to avoid further litigation. It is further said that rent was not tendered from

1.9.1990 to 31.12.1990, for four months, amounting to Rs. 4,000. This, according to landlord, is wilful default, which enables him to get

possession. It is also said that rent for January, 1991 has also become due and payable.

In the counter statement filed by tenant, it is said that the landlord did not take care to collect the rent regularly, and the respondent used to pay

rents in cash when the petitioner, his wife and his agent came for collection, but they were not regular. According to respondent, sometimes at the

interval of two or three months, petitioner or his agent would come for collection and receive the rent, and, when they stopped collecting the rent,

he started sending the rent by cheques, and now the practice is to send it by demand draft. Rent for September to December, 1990 was sent on

7.3.1991, and on 30.3.1991, the rent for January, 1991 was paid. According to him, he has paid rents upto August, 1991, and there is no arrears

or default. Even before the notice dated 12.3.1991 and eviction proceedings, respondent has paid rents. After he sent the rent, he received the

notice dated 12.3.1991 and summons in the R.C.O.P. According to tenant, the default committed by him cannot be construed as wilful, and,

therefore, he is not liable to be evicted.

Rent Controller took oral and documentary evidence. Landlord got himself examined as P.W.1. Tenant got himself examined as R.W.1.

Documentary evidence considered of Exs.A-1 to A-7 and Exs.B-1 to B-9. After evaluating the entire evidence, both oral and documentary, Rent

Controller came to the conclusion that the explanation offered by the tenant for not paying the rent in time, cannot be accepted, and he is liable to

be evicted. Rent Controller found that it is for the tenant to tender the rent as and when it became due, and it is his obligation. It was further found

by Rent Controller that at least from 1986, litigations are pending and, therefore, the tenant should have been little more careful in paying rent, and

he should have been punctual. The further explanation that the landlord used to collect the rent was also found against the tenant. It was found that

only because the tenant used to pay the rent once in two or three months, landlord was compelled to receive the same. Rent Controller directed

the tenant to put the landlord in possession, and two months time was given to vacate the premises.

Aggrieved by the order of eviction, tenant filed R.C.A. No. 1193 of 1992, on the file of Appellate Authority, Small Causes Court, Madras. The

Appellate Authority set aside the order, and came to the conclusion that the tenant has not committed wilful default, and he cannot be termed as a

wilful defaulter, mainly for the reason that even before the first hearing of the eviction petition, the entire rent was tendered. Appellate Authority

found fault with the landlord in receiving the rent when the same was tendered once in two or three months, for, according to it, this gave an

impression to the tenant that the landlord shall receive the rent whenever paid, even though there was delay.

The finding of the Rent Controller that the tenant was avoiding receipt of notice dated 12.3.1991 was also explained by the Appellate Authority

by saying that the tenant is a businessman, and merely because he had gone out in connection with his business, it could not be said that he was

avoiding receipt of notice. Holding so, the Appellate Authority set aside the order of Rent Controller and allowed the appeal and eviction petition

was dismissed.

The propriety of the judgment of the Appellate Authority is challenged in this revision by the landlord, u/s 25 of the Tamil Nadu Buildings (Lease

and Rent Control) Act.

The fact that rent from 1.9.1990 to 31.12.1990 was not paid in time is admitted by the tenant. Eviction petition was filed in February, 1991.

Even in the eviction petition, it is said that rent for January, 1991 has become due. The question whether the tenant is a wilful defaulter or a simple

defaulter is a matter to be decided taking into consideration the facts and circumstances of the case. Landlord gets a right of eviction if it is found

that the tenant is a wilful defaulter.

In S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , it was held that the landlord is entitled to get an order of eviction only if

the tenant is shown to have committed default and that he is a wilful defaulter. Their Lordships of the Supreme Court held that the default, in order

to be wilful, must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. Probably, it is

on the basis of this judgment of the Honourable Supreme Court, the Appellate Authority set aside the order of eviction. But, one thing which the

Appellate Authority omitted to consider is, that once the default is admitted, it is for the tenant to prove that the default was neither wilful nor

wanton, or deliberate, and that he Was not aware of the legal consequences arising therefrom.

In C. Thangaswamy Nadar Vs. Pappa and Others, , in paragraph 9 of the judgment, M.N. Chandurkar, C.J., has considered the effect of the

judgment in Sundaram Pillai''s case. Relevant portion of that paragraph reads thus:

Some reference was made to the decision of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, in support of

the proposition that before a tenant is evicted for default, it must be shown that the tenant was a wilful defaulter. In that decision undoubtedly it was

pointed out that default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences

flowing therefrom. The burden to show that the default is not intentional or deliberate is on the tenant. The effect of that decision will only be that a

mere proof of default may not necessarily lead to an inference of wilful default. But whether a defaulter or not is a conclusion to be arrived at on the

facts and circumstances of each case. If there was a continuous default which is unexplained, a court will be well justified in coming to the

conclusion that the default is wilful and deliberate. .. ..

In Mohamed Rowther Vs. S.S. Rajalinga Raja and Others, , in paragraph 4, it was held thus:

...it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from

the landlord in that regard. .. ..

In that case, when there was default for six months, the entire amount was not paid. Only one month''s rent was paid. The question was, whether

he was a wilful defaulter. Learned Judge of this Court held that the only conclusion that could be arrived at in such cases is that he is a wilful

defaulter. Learned Judge also took into consideration S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, and distinguished the same

on facts. In fact, learned Judge also took into consideration an earlier decision of this Court in Nagarathinam Pillai Vs. Mahadevier, , wherein it

was held thus:

The fact that the tenant deposited the rent subsequently and quite early, after the inception of the proceeding may serve to extenuate his default in

the sense that he might be now granted a reasonable time for vacating the premises. But, it is not a ground that the law can recognise for holding

that a tenant who deposits such rent, is not guilty of ''wilful default'' with regard to the period of default preceding the petition for eviction.

[Italics supplied]

In a recent decision reported in The Nilgiris Co-operative Marketing Society Vs. C.T. Uthandi, R. Balasubramanian, J., has considered this

question and has said thus:

...It is needless to say that there is legal obligation on the part of the tenant to tender the rent to the landlord month after month, whether there is

any demand for it or not. If he wants to displace this legal obligation, he must prove it by acceptable documentary or oral evidence....

Learned Judge also took note of an early decision of this Court in Deluxe Road Lines Vs. P.K. Palani Chetty, , wherein M. Srinivasan, J., as he

then was, has held thus:

Unexplained default is undoubtedly wilful. It is for the tenant to plead and prove the circumstances under which he failed to pay the rent as required

by the Statute. The obligation to pay rent is not merely contractual but also statutory. Section 10(2)(1) of the Tamil Nadu Buildings (Lease and

Rent Control) Act (hereinafter referred to as the Act) reads that if the controller after giving the tenant a reasonable opportunity of showing cause

against the application for eviction, is satisfied 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, he shall issue a direction evicting the tenant. The Proviso to the Section reads that if the

controller is satisfied that the tenant''s default was not wilful, he may give the tenant a reasonable time, not exceeding fifteen days, to pay or tender

the rent due by him. A reading of the main section and proviso makes it clear, ""that it is for the tenant to prove that his default is not wilful. It is only

the tenant who knows the relevant facts and he should plead the same and prove them before the Controller in order to satisfy the controller that

the default was not wilful. If the tenant is not able to satisfy the controller that there were circumstances which prevented him from carrying out his

contractual or statutory obligation of having paid the rent, then the necessary consequential inference is that the default is wilful. No doubt, the

Explanation introduced by the Amending Act of 1973 is to the effect that a default should be construed as Wilful if the tenant fails to pay even after

issue of two months notice by the landlord claiming the rent. But it is not necessary in every case that a notice should have been issued by the

landlord to the tenant in order to hold that the default is wilful. Even in cases where there was no notice calling upon the tenant to pay the rent, the

default could still be held to be wilful.

[Italics supplied]

R. Balasubramanian, J, has also held in The Nilgiris Co-operative Marketing Society Vs. C.T. Uthandi, thus:

...I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the

occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment

of the same as and when it became due. There cannot be any hard and fast rule to that effect, because, if that is the position in law, then there can

never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent after the rent control

petition was filed....

When this is the legal position, let us see how far the tenant was successful in proving that he has not committed wilful default in paying the rent.

As I said already, the burden is only on him, since it is something which is within his personal knowledge, The proof will have to be as stated

by M. Srinivasan, J., (as he then was) in Deluxe Road Lines Vs. P.K. Palani Chetty, , viz., that he was prevented from carrying out his contractual

or statutory obligations. If that is the scope of enquiry, I have to say that there is no pleading in that regard. The tenant only finds fault with the

landlord for not collecting the rent regularly. What he says in paragraph 3 of the counter is that he used to pay rents in cash when the petitioner, his

wife, and his agent came up for collection. Since they were not regular and since they used to come only at an interval of two or three months, thee

was delay in payment. Since the landlord stopped collecting the rent, sometimes, it was sent by cheque and now it has become the practice to send

it by demand draft. There is no case by tenant that he was prevented from discharging his contractual or statutory obligations. If that be so, there is

a presumption of wilful default.

The parties are relations. But, at least from 1986 onwards, the relationship has become strained, and litigations are pending. It is admitted by

tenant himself that till 1986, he used to send the amount (rent) to the residence of the landlord as and when it became due. Only after

misunderstanding arose, the tenant was insisting on the landlord to come and collect the rent. Till then, as per contract or by way of discharging the

statutory obligation, tenant used to tender the rent in time. Merely because the landlord accepted the rent as and when it was paid by tenant, it

cannot be taken as a ground that there is change in the contractual terms of the tenancy. Even the tenant has no case that there is any change in the

contractual terms that rent can be paid once in two or three months. The helplessness of the landlord in receiving the rent should not be exploited

by the tenant to his advantage, to put forward such a plea.

In the eviction petition, it is said that the rent for the months of September to December, 1990 are in default and rent for January, 1991 has

also become due. The rent control petition was filed on 14.2.1991. The deposit was made on 12.3.1991 for the months of September to

December, 1990. By that time, even the rent for January, 1991 was due and that also amounts to default. If there was any bona fide on the part of

tenant, he should have deposited the rent due for January, 1991 also when he deposited the rent for September to December, 1990. The only

reason that could be found is, that he received notice intimating the default for these four months and he also came to know that petition for eviction

had already been filed. When the relationship had also become strained very much, tenant cannot expect the landlord to come to his doors to

collect the rent. Even according to the tenant, he used to send the rent by cheque or draft. What prevented him from doing so for the months from

September to December, 1990 is not explained in his counter of in his deposition. It is his case that only when the petitioner failed to collect the

rent, he used to send the cheque or draft and that was his practice. Why he failed to follow that practice in the months from September to

December, 1990, is not in evidence in this case. The conduct of the tenant shows that he wanted to harass the landlord and he did not want to pay

rent as and when it be-came due. Even the practice alleged by him in paragraph 3 of his counter was not followed by him in paying the rent. Only

when he knew that eviction petition was filed, he thought of paying the amount, and that too, not in full discharge of the arrears. When five months

rent was due on 18.3.1991, i.e., on the first hearing date, he has paid only four months rent. I do not think that any evidence has been let in by the

tenant to show that he was prevented from discharging his statutory or contractual obligation. The Appellate Authority has not considered this legal

position. The Appellate Authority was swayed away by a wrong understanding of law that payment of arrears of rent before the first hearing date

would relieve the tenant from all his legal obligations. Certain passages of the judgment of the appellate authority, especially, paragraph 12, only

show that the very approach by the appellate authority is perverse. The appellate authority''s interpretation to certain circumstances in the instant

case is typical. For instance, in respect of a letter written by landlord to the tenant was returned as ''not found'', the appellate authority has said that

because the tenant happens to be a busy businessman, sometimes it so happens that such endorsements are made. According to me, if such a

businessman did not think of getting time even to fulfil his contractual or statutory obligation and even a registered notice is returned with the

endorsement ''not found'', that is also another reason to say that he did not want to pay rent in time. The tenant, by his own conduct, has proved

that he is a wilful defaulter. Apart from showing that he is a wilful defaulter, he has himself shown that he is liable to be evicted. The judgment of the

Appellate Authority is illegal and is based only on surmises, without taking into consideration the facts of the case. Mere narration of certain legal

words or extracts from judgments, is not disposal according to law. Appellate Authority has failed to see whether those decisions will apply to the

facts of the case on hand.

Learned Senior Counsel for respondent relied on V. Krishna Mudaliar v. Lakshmi Ammal (1996)2 L.W. 467, K.A. Ramesh and Others Vs.

Smt. Susheela Bai and Others, and also the decision of our High Court reported Abdul Hameed Vs. M. Sultan Abdul Kader, .

In the decision of the Supreme Court reported in V. Krishna Mudaliar v. Lakshmi Ammal (1996)2 L.W. 467, the landlord refused to receive

the rent and the landlord even initiated the proceedings alleging that he is a trespasser. Once it was found that he is a tenant, eviction proceedings

were initiated on the ground that he has not paid the rent in time and, therefore, he is a wilful defaulter. Tenant contended in that case that once he

has been treated as a trespasser and landlord is not receiving rent, he could not be made liable for eviction. That contention was upheld.

K.A. Ramesh and Others Vs. Smt. Susheela Bai and Others, was also a case where the tenant was insisting on issuance of receipt for rents

paid by him. When landlords denied payment of rent, tenant sent a bank draft, and landlords encashed the same. In the absence of receipts, a

contention was taken that the tenant was a wilful defaulter. But, on proof, it was found that he was not a defaulter.

Abdul Hameed Vs. M. Sultan Abdul Kader, , is a case where all along the practice was to collect rent once in four or six months and landlord

was also a person who was not in station. Entire amount was also paid on the first hearing of the case. All these three cases, referred to by learned

Senior Counsel for respondent are distinguishable on facts. As already said, as held by R. Balasubramanian, J. in the decision referred to above,

no court has held that a wilful defaulter will be relieved of the obligations on payment of rent after rent control petition is filed.

In the result, I hold that the decision of the Appellate Authority is illegal, improper and irregular and, therefore, this is a fit case where I should

invoke the revisional powers u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Accordingly, the civil revision petition is allowed,

and judgment of the Appellate Authority is set aside, and the order of Rent Controller is restored. Tenant is directed to surrender vacant

possession of the premises in question forthwith. Revision petitioner is entitled to his costs of this revision, quantified at Rs. 1,000 (Rupees one

thousand).