K. Khaja Khafoor vs C.J. Ramakrishnan

N. Kirubakaran, J.—The tenant is before this Court challenging the order dated 07.08.2012 passed in R.C.A. No. 31 of 2011 by the II Additional Subordinate Judge (Rent Control Appellate Authority) confirming the order of eviction passed on the ground of wilful default dated 17.12.2009 in R.C.O.P. No. 66 of 2004 by the I Additional District Munsif (Rent Controller), Coimbatore. The petitioner is a tenant in respect of a commercial premises under the respondent on a monthly rent of Rs. 700/-. Since the monthly rent payable by the petitioner was very less, the respondent filed R.C.O.P. No. 253 of 1996 for fixation of fair rent. On contest, the learned Rent Controller, fixed the fair rent at Rs. 5700/- per month. Even after fixation of fair rent, since the petitioner continued to pay the contractual rent, the respondent filed R.C.O.P. No. 66 of 2004 for eviction on the ground of wilful default and owner''s occupation. The Rent Controller came to the conclusion that the petitioner is liable to be evicted on the ground of wilful default and rejected the relief of eviction on the ground of owner''s occupation. As there was no appeal by the respondent/landlord as against the rejection of eviction on the ground of owner''s occupation, the same had attained finality. As far as eviction on the ground of wilful default is concerned, an appeal was filed by the petitioner in R.C.A. No. 31 of 2011. However, by the impugned order, the Appellate Court also confirmed the findings of the Trial Court and ordered eviction. Aggrieved by the same, the petitioner is before this Court.

Mr. M. Baskar, learned counsel appearing for the petitioner would submit that non-payment of difference in fair rent and the contractual rent will not be a ground for eviction and he relied upon the judgment of this Court rendered in Nelson and another Vs. P. Rangantahan Mudaliar, .

On the other hand, Mr. V. Nicholas, learned counsel appearing for the respondent/landlord would submit that pursuant to the fixation of fair rent, the petitioner had preferred R.C.A. No. 42 of 2004 as against the same. The said appeal was partly allowed by order dated 22.09.2006 and the fair rent was fixed at Rs. 2960/- payable from the date of petition for fixation of fair rent, i.e., R.C.O.P. No. 253 of 1996. According to the respondent/landlord, even thereafter, the petitioner continued to pay the contractual rent of Rs. 700/- and the non-payment is wilful whereby the petitioner committed wilful default in payment of rent and therefore, eviction was ordered.

As far as the judgment relied on by the learned counsel for the petitioner is concerned, it is submitted by the learned counsel for the respondent that the said judgment, reported in 1995 TNLJ 270 has been overruled by the judgment of the Division Bench of this Court reported in J. Visalakshi Ammal Vs. T.B. Sathyanarayana wherein, it has been declared that fair rent fixed is the rent payable and non-payment of the fair rent fixed will make the tenant liable for eviction. The learned counsel for the respondent would submit that only in the year 2012, the petitioner had paid a sum of Rs. 2 lakhs on being directed by this Court while admitting the civil revision petition and before that, only contractual rent was paid.

Heard the parties and perused the records.

As a matter of fact, a tenant is liable to pay the contractual rent till the fair rent is fixed. When the respondent/landlord chose to approach the Rent Control Court for fixation of fair rent and the fair rent was fixed and it also attained finality, it is the duty of the tenant to pay the fair rent fixed as it would become the normal rent payable by the tenant. Any default in payment of fair rent would make the tenant liable to vacate the premises in his occupation.

Admittedly, in this case, the fair rent was fixed by the Rent Controller in the proceedings initiated by the respondent/landlord and it attained finality on 22.09.2006. It is also clear that the petitioner did not care to pay the fair rent fixed till 05.12.2012, on which date, he was directed to deposit a sum of Rs. 2 lakhs. The Appellate Court, taking into consideration the aforesaid non-payment of fair rent, even after it attained finality, ordered eviction.

The conduct of the petitioner, by non-payment of fair rent, is glaring and he had wilfully neglected to pay the rent even after the orders passed by the learned Rent Controller. As rightly pointed out by the learned counsel for the respondent, the judgment relied on by the learned counsel for the petitioner was specifically overruled by the Division Bench of this Court in J. Visalakshi Ammal Vs. T.B. Sathyanarayana and paragraph Nos. 8 & 9 of the said judgment are usefully extracted hereunder:

The fair rent is also the rent of the building and the words used in Section 10(2)(i) of the Act are that the tenant has not paid or tendered the rent due by him in respect of the building. It is not possible to agree with the decision in Nelson and another Vs. P. Rangantahan Mudaliar, , that the arrears accruing as a result of difference between the fair rent and the agreed rent and the non-payment of the same will not qualify for seeking eviction u/s 10(2)(i) of the Act. If such a view is approved, the very object of fixation of fair rent will be defeated. The fair rent is fixed because the agreed rent is too low. The Act prescribes the procedure and the norms for fixation of fair rent. If that be so, once the fair rent is fixed and the order fixing the fair rent becomes final, the difference of the amount between the fair rent and the agreed rent becomes due at least from the date the order fixing the fair rent becomes final. Merely because certain time has lapsed from the date of filing of the application for fixation of fair rent and the determination of the fair rent, it does not enable the tenant to escape from the clutches of Section 10(2)(i) of the Act, when as per the law, the fair rent fixed becomes effective from the date of application and it becomes payable on the date the order fixing the fair rent is passed by the Rent Controller, unless the said order is challenged in appeal and thereafter in revision; and in such event when the order becomes final. The difference of the amount between the fair rent fixed and the agreed rent will have to be paid within fifteen days counted from the last day of the tenancy month, as in the case of such arrears of rent arising out of the difference in the fair rent and agreed rent, time fixed in the agreement will not apply. Therefore, it would be a case of no agreement as to the date of payment of rent and as such it would fall in the category of absence of any agreement as provided in Section 10(2)(i). The words or in the absence of any such agreement by the last day of month next following that for which the rent is payable contained in the very Section 10(2)(i) of the Act are not taken into consideration in Ranganathan''s case and so also in Nelsons case.

The interpretation placed on Section 10(2)(i) of the Act in the aforesaid cases does not take into consideration the objects of the Act. The Act while imposing certain restrictions on the right of a landlord to seek eviction of a tenant also ensures that the rent is paid by the tenant regularly by providing a ground for eviction in the event the tenant commits willful default in payment of the rent. The Act also further ensures that such tenant should pay the arrears upto date before he contests the proceedings for eviction. (see Section 11 of the Act). If as held in the aforesaid cases that non payment of difference between the fair rent fixed and the agreed rent does not amount to default much less willful default and as such does not furnish a ground for eviction under S. 10(2)(i) is accept as correct, it will result in defeating one of the important, objects of the Act and it will only encourage contumacious conduct on the part of the tenant who with impunity will not pay such arrears. Consequently, it will result in placing unreasonable restriction on the right of the landlord. It is not possible to appreciate when the fair rent fixed shall be the rent of the building, why the difference of the amount between the fair rent fixed and the agreed rent should not be considered as rental arrears, if it is not paid within 15 days from the last day of the tenancy months as provided in Section 10(2)(i) of the Act to which we have already adverted to.

From the above, it is clear that the monthly rent payable is the fair rent fixed by the competent Court. It is evident that the petitioner neglected to pay the fair rent fixed by the Trial Court right from 2006 till 2012. Therefore, the order passed Appellate Court cannot be interfered with. The civil revision petition fails and the same is dismissed. No costs. The Rent Controller, while ordering eviction, granted 3 months'' time to the petitioner to deliver vacant possession of the premises in question. Accordingly, the said period of 3 months'' granted to the petitioner from today to vacate the premises. Connected M.P. is closed.