G. Chandra vs Marimuthu

S. Sardar Zackria Hussain, J.—The landlady is the revision petitioner. The revision is filed against the order of the learned Rent Control

Appellate Authority allowing the R.C.A. No. 92 of 1997 filed by the tenant against the eviction ordered by the learned Rent Controller on the

ground of own use and occupation in respect of the petition residential premises.

The landlady filed the Rent Control Original Petition for eviction on the ground of wilful default in payment of rent for 8 months from December,

1991 to July, 1992 at the rate of Rs. 450/- per month and that the petition premises is required bona fide for own use and occupation with her

family members and stating that she is residing in the rented building.

The Rent Control Original Petition was opposed by the respondent/tenant by filing counter, in which it is stated that even during lifetime of the

landlady''s father Rajagopal Naidu, he was owning other buildings in which he was residing in one of such buildings and the revision petitioner is

also residing in her own building and therefore, the requirement of the petition premises for own use and occupation is without bona fide. It is

further stated that the respondent has not committed default wilfully in payment of rent as claimed by the revision petitioner/landlady. Since rival

claims were made for the rents by the legal heirs on the death of Rajagopal Naidu, the respondent/tenant was unable to ascertain as to whom the

rent is to be paid and therefore, the respondent/tenant has not committed default much-less wilful default in payment of rent as claimed by the

landlady and further even in the first hearing date of the Rent Control Original petition, entire arrears of rental amount have been deposited into

Court.

Before the learned Rent controller, the revision petitioner/landlady examined herself as P.W.1 and marked Exs.A-1 to A-8 on the side of the

landlady and the respondent/tenant examined himself as R.W.1 and marked Ex.B-1 on the side of the tenant. Considering such evidence, the

learned Rent Controller ordered eviction on the ground that the requirement of the petition residential premises sought for own use and occupation

is bona fide, though denied eviction on the ground of wilful default in payment of rent finding that the tenant has not committed wilful default as

claimed. The tenant preferred the appeal before the Rent Control Appellate Authority in respect of the eviction ordered on the ground of own use

and occupation and the appeal was allowed recording finding that the requirement of the petition residential premises for own use and occupation

by the landlady/revision petitioner is without bona fide. The learned Rent Control Appellate Authority also confirmed the finding of the learned Rent

Controller that the default in payment of rent as claimed for 8 months from December, 1991 to July, 1992 cannot be construed as wilful, inasmuch

as the entire arrears of rent also was paid even before the first hearing date of the Rent Control Original Petition. Such order of the learned Rent

Control Appellate Authority is under challenge in this Civil Revision Petition by the landlady.

Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

The learned counsel for the revision petitioner/landlady argued that inasmuch as the landlady is residing with her husband and children in a rented

premises, the requirement of the petition residential premises sought for own use and occupation by the landlady is proved as bona fide and

therefore, the contra finding in this regard by the learned Rent Control Appellate Authority is to be set aside. The learned counsel for the revision

petitioner/landlady further contended that though no appeal or cross appeal was filed against the order of the learned Rent Controller denying the

eviction on the ground of wilful default in payment of rent by the landlady, inasmuch as that aspect has been considered by the learned Rent

Control Appellate Authority and confirmed the order of the learned Rent Controller that the tenant has not committed wilful default in payment of

rent as claimed and since the said ground also urged in the grounds for revision that ground can also be canvassed in this revision and submitted

that inasmuch as the rent for 8 months from December, 1991 to July 1992 was not paid wilfully by the respondent, there have been supine

indifference and callousness on the part of the respondent and therefore, eviction is to be ordered on that ground also. In this regard, the learned

counsel for the revision petitioner/landlady also pointed out that even before filing of the Rent Control Original Petition, subject matter of this Civil

Revision Petition, the tenant was not in the habit of paying the rent regularly and every month and in the R.C.O.P. No. 483 of 1988 filed by the

tenant for deposit of rent into Court also, he did not deposit the rent regularly and even after filing of the Rent Control Original Petition, subject

matter of this Civil Revision Petition, the tenant is very irregular in payment of rent and such conduct of the tenant in committing default wilfully in

payment of rent before filing of the Rent Control Original Petition as well as after filing of the Rent Control Original Petition is also to be considered

in finding that the tenant has committed wilful default in payment of rent from December, 1991 to July, 1992.

The learned counsel for the respondent/tenant contended that inasmuch as the landlady was residing in the house owned by her husband and

that at the time when she gave evidence she has been residing with her husband and children in another building owned by herself, her two sisters

and mother, the requirement sought for the petition residential premises on the ground of own use and occupation is mala fide. The learned counsel

for the respondent/tenant also relied on the decision Fakir Mohideen Vs. Habibunnissa (died) and Others, , in which, this Court has held:-

It is settled law that a claim for eviction, on the ground of bona fide own occupation, that requirement must be available to the landlord not only on

the date of petition but it should continue to be there on the date of final adjudication of rights. If, in between the periods, there is a change of

circumstance due to subsequent events, that is also a matter which should be taken into consideration by this Court.

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In both Sections 10(3)(a)(i) and 10(3)(a)(iii), one of the qualifications for getting possession is that the landlord or the person for whose

requirement the building is sought to be evicted, should not own a building of his own (whether the requirement is residential or non-residential) in

the City, town or village.

The learned counsel for the respondent/tenant further submitted that since rival claims were made for the rents by the legal heirs on the death of

Rajagopal Naidu, the respondent/tenant was unable to ascertain as to whom the rent is to be paid and therefore, the respondent/tenant has not

committed default much-less wilful default in payment of rent as claimed by the landlady and further even in the first hearing date of the Rent

Control Original petition, entire arrears of rental amount have been deposited into Court. The learned counsel for the respondent/tenant also

submitted that inasmuch as no cross-appeal or appeal has been filed by the landlady challenging the correctness of the finding of the denial of

eviction on the ground of wilful default by the learned Rent Controller, it is not open for the landlady to seek eviction on that ground by raising the

same in this Civil Revision Petition. The learned counsel for the respondent/tenant placed the following decisions:-

(1) M/S Chordia Automobiles Vs. S. Moosa and Others, , in which, the Apex Court has ruled:-

Explanation 1 to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has given a benefit to a tenant viz., if there is

default in payment of rent and a notice is sent by the landlord of such default, then the default would mature into a wilful default only if the default

continues; in other words, the defaulted amount is not paid within a period of two months from the date of notice.

(2) T. Soundarapandian Vs. G. Rathinam, , in which this Court has held at page 628:-

It is not in dispute that as against the order passed by the Rent Controller, rejecting the case of the petitioner on the ground of wilful default, the

landlord has not chosen to file any appeal nor the landlord filed any cross appeal also before the Appellate authority. Even in the revision petition

filed before this Court, the landlord has not raised any such ground. In those circumstances, the Court is of the view that it is not open to the

landlord to raise such a plea in this civil revision petition and if it is allowed, the opposite party would be caught unaware of the matter, which is not

permissible. If the landlord or the tenant is allowed to raise such a plea in the civil revision petition, which he has not chosen to do so before the

Courts below, then the very purpose of filing of appeal or revision would also be defeated that the Court has to put to an end to this type of course

of action and therefore, the Court is of the view that the petitioner is not entitled to raise such a plea before this Court, who having failed to prefer

an appeal as against the order of original authority, before the Appellate Authority concerned"".

In the Rent Control Original Petition, in paragraph 7, it is stated that the landlady is residing in a small building consisting of one room with her

family members and such averment made in the petition is denied in the counter. It is further stated in the counter that even during the life time of

Rajagopal Naidu, the father of the landlady, he was owning other buildings and he was residing in one of such buildings and the landlady is also

residing in her own building. In the Rent Control Original Petition, the address of the landlady is given as 65, North Krishnan Koil, North Masi

Street, Madurai. In her chief examination, P.W.1 has deposed that she is residing in North Krishnan Koil lane. In her cross-examination P.W.1 has

stated that the petition premises is originally belonged to her grandmother Santhana Lakshmiammal, the aunt of her father and she executed a Will

in favour of her father. It is further in her evidence that in notice Ex.A-3 dated 17.6.1992, the address is given as 376, North Masi Street,

Madurai. Her mother Devaki Ammal is residing in the house bearing door No. 375, North Masi Street, Madurai which belongs to the father of the

landlady and it consists of two floors in which property also she has got a share. The house bearing door No. 65, North Krishnan Koil lane is her

own house. The upstairs portion of the house bearing door No. 375, North Masi Street, Madurai was rented and the tenant from that portion

vacated and it is lying vacant. It is her further evidence that since the house bearing door No. 65, North Krishnan Koil Lane is in dilapidated

condition, she is residing with her husband and children along with her mother in the house bearing door No. 375, North Masi Street, Madurai. In

the re-examination, she has stated that the house bearing door No. 65 belongs to her husband. It was allotted to the share of her husband in the

partition between her husband and his elder brother and which partition took place 15 years before. She denied the suggestion that since the house

bearing door No. 65, North Masi Street, Madurai allotted to the share of his husband in the partition is in dilapidated condition and is to be

reconstructed, she has been residing in the house of her mother wherein her mother is also residing. In her further re-examination, P.W.1 has stated

that her husband''s father Muthu Azhagarsamy executed a Will, as per which, ""D"" schedule property was allotted to the share of her husband.

Therefore, it is clear that the house bearing Door No. 65, North Masi Street, Madurai, where she was residing along with her husband and

children, belongs to her husband. Admittedly, the landlady is now residing along with her mother in the house bearing door No. 375, North Masi

Street, Madurai belonged to her, two sisters and her mother Devaki Ammal. Since the landlady is in occupation of the residential building of her

own, viz., the house bearing door No. 375, North Masi Street, Madurai, along with her husband and children and residing with her mother in the

same house, the requirement of the petition residential premises sought for own use and occupation by her u/s 10(3)(a)(i) of the Tamil Nadu

Buildings (Lease and Rent Control) Act, cannot be considered to be bona fide. Therefore, the finding of the learned Rent Control Appellate

Authority on that aspect cannot be said to be incorrect.

As regards the contention put-forth for the respondent/tenant that it is not open to the landlady to raise the ground of wilful default in payment of

rent as claimed by the landlady in this Civil Revision Petition, in that the denial of eviction on that ground by the learned Rent Controller was not

challenged by filing cross appeal or appeal by the landlady, as rightly argued by the learned counsel for the landlady though no cross appeal or

appeal was filed against the denial of eviction on the ground of wilful default in payment of rent, the Rent Control Appellate Authority has recorded

finding on that aspect also and confirmed the order of the learned Rent Controller in finding that the tenant has not committed wilful default in

payment of rent, inasmuch as he has paid the entire arrears of rent before first hearing date of the Rent Control Original petition and that the

landlady has also taken this as one of the grounds in this Civil Revision Petition. Therefore, the case of the landlady with regard to the eviction

sought on the ground of wilful default also can be considered in this Civl Revision Petition.

In the Rent Control Original Petition, it is set out that the respondent/tenant committed wilful default in payment of rent for 8 months from

December, 1991 to July, 1992, but in the counter it is not specifically denied as to whether the tenant committed default wilfully in payment of rent

as claimed for the said months and it is only stated in the counter in paragraph 5 that since on the death of Rajagopal Naidu, the father of the

landlady, other legal heirs have also made rival claims for the rent and so he was unable to ascertain to whom the rent has to be paid, because of

which he could not deposit the rent into Court and further in view of the fact that entire arrears of rent was deposited even before the first hearing

date in the Court, in the said circumstances, the respondent/tenant has not committed default much-less wilful default in payment of rent for the

months of December, 1991 to July 1992.

The landlady as P.W.1 has stated in her evidence that the tenant was very irregular in payment of rent and he used to pay the rent in lump-sum

four or many months together. Her father Rajagopal Naidu caused lawyer notice under Ex.A-1 dated 23.7.1989 to which the respondent/tenant

replied under Ex.A-2 dated 8.8.1989 and along with the reply notice the tenant sent a demand draft for Rs. 3,600/- and even after the death of her

father, the tenant was very irregular in payment of rent. Hence P.W.1 along with other co-owners caused lawyer notice under Ex.A-3 dated

17.6.1992 that the tenant committed default in payment of rent from December, 1991 to May, 1992 for six months aggregating to Rs. 2,700/-

(Rs. 450.00 x 6 = Rs. 2,700.00). The notice was served upon the tenant under Ex.A-4 on 20.6.1992. It appears no reply was sent to the notice

Ex.A-3 by the tenant and that the arrears of rental amount as claimed from December, 1991 to May, 1992 was also not paid. The Rent Control

Original Petition was filed on 12.8.1992. On the first hearing date of the Rent Control Original Petition, viz., on 23.9.1992 the tenant deposited the

entire arrears of rent into Court. Therefore, it is clear only two months after issuance of notice Ex.A-3 dated 20.6.1992, the arrears of rent

admittedly have been deposited by the tenant into the Court. As such there have been deliberate intention in depositing the rent and as such default

in payment of rent as claimed for the period from December, 1991 to July, 1992 is to be construed as wilful default, in that, the default continued

even two months after the issuance of notice under Ex.A-3 in depositing the rent by the tenant.

Even after filing of the Rent Control Original Petition, the tenant deposited Rs. 3,150/- in lump-sum on 1.9.1993 in Court as per chalan No.

1351, Rs. 1,350/- on 25.7.1994 as per chalan No. 2894 and Rs. 2,700/- on 19.7.1994 as per chalan No. 1490. Admittedly, the quantum of rent

is Rs. 450/-. The arrears of rent for the period from December, 1991 to July, 1992 comes to Rs. 3,600/-. It is admitted by the landlady, as P.W.1

in her evidence that a sum of Rs. 1,500/- was paid as advance. After adjusting one month rent alone towards the advance, the balance sum of Rs.

1,050/- is to be adjusted with the arrears of rent, viz., from Rs. 3,600/- relating to the period from December, 1991 to July, 1992 and after

adjustment Rs. 2,550/- was due towards arrears of rent for the said period and in paying such rental amount the tenant deposited only two months

after issuance of notice under Ex.A-3 dated 17.6.1992. As such, u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act there

have been supine indifference and callousness on the part of the tenant.

It is merely stated in the counter that since rival claims were made for the rent on the death of Rajagopal Naidu and since the tenant was unable

to ascertain to whom the rent was payable, he could not pay the rent. There is no force in the contention. It is clearly set out in the lawyer notice

Ex.A-3 dated 17.6.1992 sent on behalf of the landlady, her mother and sisters that rent is payable to them. In the Rent Control Original Petition it

is stated that P.W.1 being the original landlord''s daughter, the petition has been filed by her as one of the co-owners and she has also deposed in

her evidence that she is residing with her mother and her sisters are residing elsewhere and her mother is unable to move about and she is paying

property tax and she is collecting the rental amount. Further no petition was filed by the tenant for depositing the rent into Court u/s 9 of the Act. If

really, the tenant had doubt as to whom the rent was payable for the relevant period in spite of the fact previously he has filed R.C.O.P. No. 483

of 1988 u/s 8(5) of the Act to deposit the rent into Court when the original landlord Rajagopal Naidu was alive, he ought to have filed a petition to

deposit the rent into Court u/s 9 of the Act. So there have been supine indifference and callousness on the part of the tenant and he has committed

wilful default in payment of rent for the period from December, 1991 to July, 1992 and even after adjustment of the advance amount of Rs.

1,050/- from the total arrears of rent for the said period i.e., Rs. 3,600/- payable for the said period. The Rent Control Appellate Authority has not

recorded proper finding stating that inasmuch as the entire arrears of rent has been paid even before the first hearing date of the Rent Control

Original Petition, the default committed by the tenant cannot be construed as wilful. Further, the tenant deposited the rent only on 23.9.1992 which

is two months after issuance of notice Ex.A-3 dated 17.6.1992. Therefore, eviction has to be ordered on the ground of wilful default in payment of

rent for the months of December, 1991 to July, 1992.

In the result, this Civil Revision Petition is allowed with cost ordering eviction on the ground of wilful default in payment of rent and setting aside

the judgment and decree dated 12.4.1999 made in R.C.A. No. 92 of 1997 by the learned Rent Control Appellate Authority.