K. Avinasilingam vs Hamsa and Another

Ratnam, J.—The tenant is the Petitioner. In R.C.O.P.No. 686 of 1984 filed u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent

Control) Act, 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as ''the Act'') the respondents prayed for the passing of an order

of eviction against the petitioner on the ground that having obtained an order for deposit of rents in H.R.C.No. 569 of 1981 u/s 8(5) of the Act, the

tenant wilfully defaulted in the payment of monthly rent at the rate of Rs. 350 for the months of April, May, July, September and October, 1983. In

the counter filed by the petitioner, a plea was raised that as a result of the obtaining of orders u/s 8(5) of the Act in H.R.C.No. 569 of 1981 the

respondents could not initiate proceedings for eviction against the petitioner u/s 10(2)(i) of the Act and that there was also no wilful default in the

payment of rents for the months in question.

The learned Rent Controller found that though the application u/s 10(2)(i) of the Act for eviction at the instance of the respondents was

maintainable despite the earlier orders u/s 8(5) of the Act, the petitioner had not committed wilful default in the payment of rents for the period in

question and in the view, dismissed the application for eviction. On appeal, however, by the respondents before the Appellate. Authority, it was

found that the petitioner had deliberately omitted to deposit the rents into court after obtaining a deposit order and the failure to pay the rents had

also not been in any manner satisfactorily explained and therefore, the petitioner had committed wilful default in the payment of rents at least for the

months of April and September, 1983 and that deserved the eviction of the petitioner from the premises in his occupation. It is the correctness of

this order that is questioned in this Civil Revision Petition.

Before proceeding to consider the contentions urged, it would be necessary to advert to a few undisputed facts. In respect of the premises

under the occupation of the petitioner, the petitioner is the tenant and the respondent''s are the landlords and the monthly rent payable by the

petitioner is Rs. 350. At the instances of the petitioner, H.R.C.No. 569 of 1981 was filed u/s 8(5) of the Act praying for permission to deposit the

rents from August, 1980 onwards till the date of the application and also the future rents on the ground that the landlords refused to receive the

same. On 27.9.1982, by an order passed in H.R.C.No. 569 of 1981 by the Rent Controller (XIII Judge, Court of Small Causes) Madras, the

petitioner was permitted to deposit the rents from August, 1980 and uptodate and also the future rents, deducting the unadjusted advance. It is

common ground that this order has become final. It is in the background of the proceedings taken by the petitioner that the question of wilful

default asserted by the respondents herein against the petitioner in the matter of non-payment of rents has to be considered.

According to the case of the respondents, the petitioner had committed wilful default in the payment of rents even as per the order passed in

H.R.C.No. 569 of 1981 for the months of April, May, July, September and October, 1983. In order to establish this, the respondents relied upon

the several notices under Exhibit P.1 series relating to the deposit of amounts of or at the instance of the petitioner into Court pursuant to the order

passed in H.R.C.No. 569 of 1981. Therefrom it is seen that on 16.2.1983, the rent for January, 1983 had been deposited. For February, 1983,

the rent had been deposited on 28.3.1983. Under Exhibit P.3 dated 20.4.1983, a sum of Rs. 350 had been deposited, though the month has not

been specified. The next communication under Exhibit P.1 series is on 21.7.83, in and by which the respondents have been informed that a sum of

Rs. 700 had been deposited towards the rent due for the months of May and June, 1983. Likewise, by yet another communication dated

2.9.1983, a sum of Rs. 700 towards the rent for July and August, 1983 has been stated to have been deposited, the next communication is dated

10.11.1983 and that is to the effect that the rent for the month of November, 1983 had been deposited. Even taking into account the

communication regarding the deposit under Exhibit P.3 dated 20.4.1983 as relating to the month of March, 1983, it is established from the

communications addressed by the petitioner to the respondents that the rent for the months of April, September, and October, 1983 had not been

deposited. From the statement Exhibit R.3 filed by the petitioner, it is seen that the rents for the months of April and September, 1983, even

according to the petitioner, had been deposited only on 24.7.1984 and 10.8.84 respectively. In so far as the deposit of rent for the month of

October, 1983 is concerned, there is no communication also by the petitioner. Thus, from Exhibits P.1, P.3, and R.3, it is clearly established that

for the months of April, September and October, 1983 the petitioner had not paid the rents within a reasonable time. Indeed, it is seen that the

rents for the months of April and September, 1983 had been paid even according to the statement of the petitioner under Exhibit R.3 on 24.7.84

and 10.8.84 respectively. In the communications relating to the deposit marked as Exhibit P.1 series, there is nothing to indicate that the petitioner

deposited any rent for the month of October, 1983, as after 2.9.1983 relating to the months of July and August, 1983, the next communication is

dated 10.11.1983 in which it is specifically mentioned that the rent of Rs. 350 stated therein related to November, 1983. Prima facie, therefore,

the petitioner failed to deposit the rent u/s 8(5) of the Act within in a reasonable time, at least for these months or at any rate for the months of

April and September, 1983.

u/s 10(2)(i) of the Act, protection is given to the tenant against removability from the premises in his occupation, if the tenant pays or tenders the

rent due by him in respect of the building with in 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. u/s 8(2) of the Act, in a case where a

landlord refuses to accept or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, call upon

the landlord in writing requiring him to specify a bank into which the rent may be deposited by the tenant to the credit of the landlord, Section 8(3)

of the Act permits the tenant to deposit the rent in the bank so specified by the landlord and enables him to continue to deposit the rent which may

subsequently become due in respect of the building. On the failure of the landlord to specify a bank, u/s 8(4) of the Act, the tenant shall remit the

rent to the landlord by money order after deducting the money order commission. It is only when the landlord refuses to receive the rent remitted

by money order, under Sub-section (5) of Section 8, the tenant may deposit the rent before the Rent Controller and continue to deposit any rent

which may subsequently become due in respect of the building. It is thus seen that Section 8(5) of the Act, which had been resorted to by the

petitioner in this case in H.R.C.NO. 509 of 1981, is intended to protect the tenant from the consequences of non-payment of rent amounting even

to wilful default owing to the refusal by the landlord to receive the rent when tendered. u/s 9(2) of the Act, the amount deposited u/s 8(5) of the

Act may be permitted to be withdrawn by the person held by the Rent Controller to be entitled to the amount on an application made by such

person to the Rent Controller in that behalf. It is ''thus seen that the obligation of the tenant to pay or tender the rent within fifteen days after the

expiry of the time fixed in the agreement of tenancy or in its absence by the last day of the month next following that for which the rent is payable, is

intended to be fulfilled by resort to Section 8(5) of the Act and the deposit of the rents, refused to be received by the landlord when remitted by

money order as well as that which may subsequently become due, u/s 8(5) of the Act, when paid out to the landlord u/s 9(2) of the Act, would

ensure the payment of the rent regularly by the tenant as well as the receipt thereof by the landlord on being paid out to him by an order of the

Controller u/s 9(2) of the Act. It is, therefore, obvious that it is not merely for the sake of a deposit into Court Section 8(5) of the Act is intended,

but it also serves a very vital and important purpose in that by resorting to deposit of rents u/s 8(5) of the Act after obtaining the orders of the

Controller in that regard, the rents refused to be received in the usual course by the landlord are not only paid by the tenant, but also made

available to the landlord so that a ground for eviction u/s 10(2)(i) of the Act does not arise, in the event of the deposit of rents being made without

default. Thus, on a conjoint consideration of Sections 10(2)(i), 8(5) and 9(2) of the Act, it is at once evident that the order for deposit u/s 8(5) of

the Act is primarily intended to confer a protection on the tenant from eviction on the ground of wilful default in the payment of rent.

Bearing this in mind, the contention urged by learned Counsel for the petitioner may now be considered. According to learned Counsel, when

once there is an eviction u/s 8(5) of the Act resort to eviction u/s 10(2)(i) of the Act, cannot be had at all. In support of this, attention was drawn to

the observations occurring at page 166 in Durgai Ammal v. R.T. Mani (1989) 1 L.W.155. On the other hand, learned Counsel for the respondents

submitted that a fortiori in a case where an order for deposit of rents u/s 8(5) of the Act had been obtained and that had not been complied with, it

would be nothing but a case of wilful default, as an order u/s 8(5) of the Act is intended only as a mantle of protection thrown on the tenant against

his removability on the ground of wilful default and when default is committed in the deposit of rents even thereafter, there could be no excuse

whatever for the non-payment of rents as per the order u/s 8(5) of the Act.

Earlier, it has been noticed how from the documents filed it had been clearly made out that even after the obtaining of an order u/s 8(5) of the

Act on 27.9.1982 in H.R.C.No. 569 of 1981, the petitioner had not deposited the rents for the months of April, September, and October, 1983

or at any rate, for April and September, 1983. It has to be remembered that it was the petitioner who had invoked the jurisdiction of the Rent

Controller u/s 8(5) of the Act and invited an order with a view to avert any possible proceedings for eviction on the ground of wilful default being

initiated against him by the landlords. In such a situation, the failure of the petitioner to deposit the rents into court for the months referred to above

cannot but be characterised to be deliberate and wilful. Having invited an order permitting the deposit of monthly rents into court u/s 8(5) of the

Act, the petitioner cannot be heard to say that he need not comply with it or even if he had failed to comply with it, eviction proceedings could not

be initiated against him u/s 10(2) (i) of the Act. The object behind Sections 10(2)(i), 8(5) and 9(2) of the Act has already been noticed and when

the tenant commits default in depositing the rents pursuant to an order u/s 8(5) of the Act, as a consequence thereof, the rents are not paid and

made available to the landlord u/s 9(2) of the Act and that in turn, would render the tenant liable to be evicted u/s 10(2)(i) of the Act. In this case,

the petitioner, who was fully aware of his obligation to deposit the monthly rents u/s 8(5) of the Act pursuant to the order obtained in H.R.C.NO.

569 of 1981, had admittedly not deposited the rents for the months of April, September, and October, 1983 or at least for April and September,

1983, even on the materials placed by the petitioner before the authorities and referred to earlier. Indeed, it is seen from the statement filed by the

petitioner Exhibit R-3 that the rent for April, 1983 had been deposited into Court on 24-7-1984 and the rent for September, 1983 had been so

deposited on 10-8-1984. There is hardly any convincing explanation for the delayed deposit of the rents into court by the petitioner. Further, it is

seen that the application for eviction was filed by the respondents on 20-2-1984 and it was posted on 24-3-1984 for the first hearing and the

petitioner had again appeared before the Rent Controller on 4-7-1984 and even then, the petitioner should have realised that the rents for the

months of April and September, 1983 had not been deposited and the failure to deposit the rents cannot, therefore, admit of any excuse. No

doubt, in paragraph 3 of the counter, the petitioner had stated that he had entertained an impression that the clerk would have made the deposits

and that only on seeing the dates mentioned in the application for eviction, it was realised that there were delayed deposits and on enquiry it was

learnt that the clerk fell sick often and there was thus a delay in the deposits. The petitioner has not placed any acceptable evidence in order to

establish that either the clerk fell sick on account of his sickness there was delay in the matter of deposit of the rents. Nothing prevented the

petitioner from examining the clerk who is stated to be responsible for the delay in the deposit of rents. In its absence, the delayed deposits cannot

be attributed to the sickness of the clerk as claimed by the petitioner. Yet another argument faintly attempted was that in a case where an order u/s

8(5) of the Act had been passed, it is open to the tenant to deposit the amounts whenever he chose and such deposits need not be regular. This

argument certainly cannot be countenanced when the impact of Sections 8(5) and 9(2) on Section 10(2)(i) of the Act is borne in mind. The deposit

contemplated u/s 8(5) of the Act pursuant to the order passed by the Rent Controller should also be regular and in time, so that no occasion for

the landlord initiating an action for eviction on the ground of wilful default, arises. When such deposits of rent are made regularly and in due time,

u/s 9(2) of the Act, such deposits are paid out to the landlord so that the landlord is also enabled to receive the rent regularly and without fail and

the tenant also discharges his obligation to pay the rent and the tenant continues to enjoy the protection from removability from the premises in his

occupation on the ground of wilful default. The very purpose behind Sections 8(5) and 9(2) of the Act will be completely lost, if it is to be held that

the deposit of rents could be made by the tenant as and when he chooses. Under these circumstances, where an order has been passed u/s 8(5) of

the Act, it is but proper that the deposits should be made at least within the time limit permitted for the payment of rents. The reliance placed by

learned Counsel for the petitioner upon the stray observation at page 166 in the decision reported in Durgai Ammal v. R.T. Mani (1989) 1

L.W.155 does not in any manner assist the case of the petitioner. In that case, from the facts as set out therein, no order u/s 8(5) of the Act had

been passed at the instance of the tenant. Considering the refusal by the landlord of the rents sent by the tenant and the argument that Section 8 of

the Act should have been resorted to by the tenant in order to save himself from it was observed that the failure of a tenant to resort to Section 8 of

the Act to deposit the rents will not amount to wilful default on his part in payment of rents. That observation has no relevance whatever in a case

like this, where an order Section 8(5) of the Act had been obtained by the tenant and the rents had not been deposited in accordance with that

order. The decision in Manmohan Kaur Vs. Surya Kant Bhagwandi, , which arose under the provisions of Bihar Buildings (Lease, Rent and

Eviction) Central Act, 4 of 1983, may now be considered. In considering the question of delay in Section 15 of that Act leading to the striking out

of the defence, the Supreme Court pointed out that if the delay is explained, then there is no delay and the defence cannot be struck off, while, if

the delay is not explained or the explanation is one which is not acceptable to the Court, then the Court must strike out the defence and there is no

discretion. On a consideration of the facts and circumstances of this case, it is clearly seen that the delay has not been satisfactorily explained and

the Appellata Authority was, therefore, right in its conclusion that the petitioner had committed wilful default and thus rendered himself liable to be

evicted. The Civil Revision Petition is, therefore, dismissed with costs.