G. Sagayam vs C. Siviah (deceased)

B. Rajendran, J.—This Civil Revision Petition is filed against the Judgment, dated 29.9.2006 made in R.C.A. No.18 of 2006 on the file of the learned Subordinate Judge of the Nilgiris at Udagamandalam, thereby, confirming the Order of Eviction, dated 31.1.2006 made in R.C.O.P. No.69 of 2004 on the file of the Rent Controller, Udagamandalam, on the ground of wilful default.

The Revision Petitioner is the Tenant. The building in occupation by the Tenant is a residential building. The only ground, which has been raised by the Revision Petitioner/Tenant is that earlier R.C.O.P. filed by the Landlord in R.C.O.P. No.49 of 1999 for eviction on the ground of own use and occupation was allowed and subsequently, the Execution Petition was filed in E.P. No. 139 of 2001, but, the same was dismissed. Thereafter, the present R.C.O.P. in R.C.O.P. No.69 of 2004 was filed by the First Respondent herein/Landlord seeking eviction on the ground of wilful default. According to the Petitioner, the present R.C.O.P. was filed with an ulterior motive to just evict the Tenant and therefore, the present R.C.O.P. is not maintainable and the same is barred by res judicata and there is no reason to force the Tenant to vacate the premises, but, this vital fact has not been considered by both Courts below and concurrently ordered for eviction, hence, aggrieved against the same, the Tenant is before this Court with this Revision.

The learned Counsel for the Respondents/Landlords would contend that during the pendency of this Revision, the First Respondent/Landlord died, subsequently, his Legal Representatives were impleaded as Respondents 2 to 5. He would further submit that there is no res judicata and insofar as the earlier R.C.O.P. is concerned, it was filed seeking eviction on the ground of own use and occupation, but, the present R.C.O.P. was filed seeking eviction on the ground of wilful default. Further, he would contend that the wilful default has been proved, because, admittedly, only after the direction of this Court, an amount of Rs. 28,000/- was paid on 9.9.2013, which is admittedly the rent for the past ten years, which itself will clearly indicate and prove beyond reasonable doubt, it is a wilful default. To subtantiatc his contention, that the conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will constitute "wilful default'', the learned Counsel has relied on the latest Judgment of this Court reported in V. Kannadasan v. K. Swaminatha Pathar, 2007 (2) CTC 127 : 2007 (4) LW 435.

Heard both sides. By consent, the main Revision itself is taken up for final disposal. I have also perused the records carefully.

The short point for consideration in this Revision is: Whether the wilful default will continue, when the payment is not made even during the pendency of the proceedings ?

Here is a case, where it is admitted by the Revision Petitioner/Tenant himself that for the past ten years, he has not paid even a single pic as rent to the Landlord, but, he continued to occupy the premises, even though, the very case itself was filed for eviction on the ground of wilful default. Further, it is pertinent to note that having suffered an order of eviction before both Courts below, admittedly, no amount has been deposited before the Lower Court and only on direction of this Court, pending Revision, on 9.9.2013, the entire arrears of rent of Rs.28,000/-, which represents the rent for the past 10 years has been paid. Thereafter also, no amount has been paid, which is an admitted fact. Therefore, the question of default has been proved beyond reasonable doubt by the conduct of the Revision Petitioner/Tenant himself.

At this juncture, it is worthwhile to refer to the decision relied on by the learned Counsel for the Respondents/Landlords reported in V. Kannadasan v. K. Swaminatha Pathar, 2007 (2) CTC 127 : 2007 (4) LW 435, for the proposition that the conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent conduct of the Tenant can be taken into consideration in deciding the matter. In the said Judgment, this Court has further observed that when the Tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default. In the said Judgment, this Court in Paragraph Nos.21 & 22 has held as under:

"21. The learned Counsel for the Petitioners/Tenants vehemently contended that when there is no wilful default prior to the filing of the Petition, the subsequent arrears cannot be taken as wilful default. This contention does not merit acceptance. Let us take a case when the Tenant committed default and continued to commit default or bring irregular in paying the rent during the pendency of proceedings. Is it fair to hold that there was no wilful default. This is all the more so, where the Tenants have challenged the sale deed in favour of the Respondent-Landlady.

The conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent conduct of the Tenant can be taken into consideration in deciding the matter. In the decision reported in Anraj Pipada v. Umayal, 1998 (2) MLJ 524 : 1998 (3) LW 159, S. Jagadeesan, J. has held that when the eviction proceedings have been initiated on the ground of wilful default, one would expect the Tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the Tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default."

On a careful perusal of the Order passed by both Courts below, I have no hesitation to hold both Courts below have rightly ordered for eviction on the ground of wilful default. The earlier R.C.O.P. filed by the First Respondent herein/Landlord in R.C.O.P. No.49 of 1999 is for eviction on the ground of own use and occupation, but, the present R.C.O.P. in R.C.O.P. No.69 of 2004 was filed by the Landlord seeking eviction on the ground of wilful default. Therefore, the earlier R.C.O.P. filed for own use and occupation will not be a res judicata, in view of the fact, the present R.C.O.P. was filed seeking eviction on the ground of wilful default, which has been clearly proved.

Hence, this Civil Revision fails and the same is dismissed. The order passed by the First Appellate Court, dated 29.9.2006, is confirmed. At this point of time, the learned Counsel for the Revision Petitioner/Tenant prays that the Tenant being a poor man and the building in occupation by him is a residential building and he finds it difficult to immediately find a suitable alternative premises, he seeks time for eight months. Though, the Respondents/Landlords submitted that six months time may be given, this Court feels that eight months time would be the fair and reasonable time and therefore, the Petitioner/Tenant is granted time till 30.6.2014 to vacate and hand over the vacant possession of the premises, on condition that the Petitioner/Tenant shall file an Affidavit of Undertaking before this Court, within ten days from today, without waiting for the Order copy, thereby, agreeing to vacate and hand over the vacant possession of the premises on or before 30.6.2014 and he will not seek further extension of time to vacate the premises and he is further directed to pay the arrears of rent, if any, as on date within a period of one month from the date of receipt of a copy of this order and he shall continue to pay the agreed monthly rent of Rs. 250/-, on or before 10th of every succeeding English Calendar month, till the handing over of possession of the premises i.e., on 30.6.2014. On their failure to pay the agreed monthly rent for a continuous period of two months, this order granting time till 30.6.2014 for the Petitioner/Tenant to vacate and hand over possession of the premises will not ensure to his benefit. If the Affidavit of Undertaking is not filed before this Court within the time stipulated herein, the time granted for vacating and handing over possession of the premises will not ensure to the benefit of the Petitioner/Tenant. On the failure of the Tenant to comply with any of the conditions stipulated herein within the time prescribed, the Respondents/Landlords are entitled to move appropriate Application including contempt against the Tenant. Consequently, connected Miscellaneous Petition is closed. No costs.