K. Periyanayagam vs J.K. Savithri and Others

S.K. Krishnan, J.—The Civil Revision Petition is directed against the judgment and decree passed in R.C.A.No. 14 of 1992 on the file of

the Principal Subordinate Judge, Madurai dated 31.7.2000 confirming the Order and decree passed in R.C.O.P.No.389 of 1985 on the file of the

Additional District Munsif-cum-Rent Controller, Madurai Town, dated 10.12.1991.

The tenant, who is the revision petitioner, being occupied a front room of Door Nos. 233, and 233-b, wherein the respondents, who are

owners of the said door numbers are residing, for rent, to run Ayurvedic clinic, at Rs. 130 per moth, thereafter, the same was increased to Rs. 200

per month. The petitioner was not proper in paying the rent. On 11.5.1985 the petitioner paid a sum of Rs. 400 and thereafter, he did not make

any payment. On the date of filing the petition, he was of the balance of Rs. 2540. After the receipt of the notice dated 20.6.1985, he paid Rs.

300, however, he has to pay Rs. 2240. Since, the space for the pathway is not enough for the respondents and their family members, they decided

to convert the room let out to the petitioner into a pathway and the same was informed to the petitioner, but he did not respond to their request,

and therefore, the respondents issued a notice on 20.6.1985, even for which no reply has been given. Hence, the respondents filed a petition

before the Rent Controller, Madurai, who framed the following two issues.

a. Whether the respondent/tenant has committed any wilful default in paying the rent ?

b. Whether petition-building is requied for the own use of the landlords ?

On considering the evidence and the materials on record, the rent controller, decided the issues in favour of the respondents herein and allowed

the petition by ordering eviction. Against which, the petitioner filed an appeal before the Rent Control Appellate Authority, Madurai, who, by his

order, confirmed the order of the Rent Controller. Aggrieved by the same, the tenant has come forward with this revision.

Heard the learned counsel for the petitioner as well as the respondents.

The learned counsel for the petitioner would contend that though the Rent Controller had not decided the matter in a proper perspective, the

appellate authority also simply confirmed the findings of the Rent Controller and therefore, the order of the Appellate Authority is not sustainable

under law and hence, the same is liable to be set aside.

Per contra, the learned counsel for the respondents would contend that the respondents have adduced satisfactory evidence to prove the wilful

default committed by the petitioner in paying the rent and the bona fide requirement of the building being occupied by the petitioner and also on the

basis of the materials placed before the Rent Controller in support their claim, the Rent Controller arrived at a right conclusion and decided the

matter in a proper perspective and therefore, the revision has to be dismissed. Further, the learned counsel relied upon the following decisions in

support of his contention.

In S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , the Supreme Court held as follows:

As we read the explanation, it does not at all take away the mandatory duty cast on the Controller in the proviso to decide if a default is wilful or

not. Indeed, if the landlord chooses to give two months'' notice to his tenant and he does not pay the rent, then, in the absence of substantial and

compelling reasons, the controller or the Court can certainly presume that the default is wilful and order his eviction straightaway. We are unable to

accept the veiw that whether two months'' notice for payment of rent is given or not, it will always be open to the controller under the proviso to

determine the question of wilful default because that would render the very object of Explanation otiose and nugatory. We express our view in the

matter in the following terms:

(1) Where no notice is given by the landlord in terms of the Explanation, the Controller, having regard to the four conditions spelt out by us has the

undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions

mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by

giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have

to be rejected,

(2) If the landlord chooses to give two months'' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated

time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would

itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring

the notice sent by the landlord.

In Abdul Kader Vs. G.D. Govindaraj (D) by Lrs., the Supreme Court held as follows:

The suit filed by the landlord is preceded by a two months notice by the landlord served on the tenant demanding the payment of rent including

the amount of tax in arrears. The suit was filed after awaiting the fulfilment of the demand for the requisite period of two months. According to the

Explanation, appended to Sub-section (2) of Section 10, the default to pay or tender rent shall be construed wilful if default in payment or tender

continues after issue of two months'' notice by the landlord for clearing the arrears. This Explanation came up for consideration of this Court in S.

Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, and it was held that if despite notice, the arrears are not paid, the tenant is said to

have committed a wilful default and he will be liable to be evicted forthwith. It has been further held that where the landlord chooses to issue two

months'' notice and the rent is not paid that would be conclusive proof of the default being wilful unless the tenant proves his incapability of paying

rent due to unavoidable circumstances. Needless to say, it is not the case of the tenant that there were any such unavoidable circumstances which

had rendered him incapable of paying the rent.

On a perusal of the judgment of the appellate authority it reveals that the appellate authority has not discussed the facts either at short or at

length with the conclusion arrived at by the Rent Controller with reference to the contention of the respondents that the petitioner has committed

wilful default and their bonafide requirement of additional accommodation.

On a perusal of the above decisions, with regard to wilful default, it reveals that where the landlord chooses to issue two months notice and the

rent is not paid that would be conclusive proof of the default being wilful unless the tenant proves his incapability of paying rent due to unavoidable

circumstances. I do not find any finding with regard to wilful default, on the basis of oral and documentary evidence available on record, on the

above issue in the order of the appellate authority.

With regard to additional accommodation, there is also no finding in the order of the learned Subordinate Judge that the requirement of

additional accommodation is a bonafide one and if that claim is bonafide one, then there should be a finding as to whether the advantages of the

landlord would outweigh the disadvantages of the tenant for ordering eviction.

On a perusal of the order of the lower appellate authority, I do not find any finding with regard to wilful default and requirement of additional

accommodation, but the only finding of the lower appellate authority is as follows:

The above finding of the lower appellate authority, as said above, without discussing the facts and the materials available on record with the

conclusion arrived at by the Rent Controller, is not proper and correct. At this juncture, it is pertinent to note that the tenant, who aggrieved against

the order of the Rent Controller, filed an appeal before the lower appellate authority. The lower appellate authority merely endorsed the decision of

the trial Court. Such sort of mere endorsement, in the name of finding without assigning any reasons therefore and without discussing the facts and

legal positions with the decision of the trial Court, should not be allowed. It is very against the principles of natural justice and this trend should be

discouraged. Otherwise, not only the faith reposed on the judiciary by the litigants will be vanished, but also, it would pave the way for

accumulation of pendency of cases in the appellate Court. The affected party should know why the decision has gone against him and the justice

rendered by the Court through the reasons given by it should convince the affected party consciously, eventhough the decision has gone against

him, that what was held by the Court is correct. In this regard, the Supreme Court recently held in State of Punjab Vs. Bhag Singh, as follows:

Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union, observed:"" The giving of reasons is one of

the fundamentals of good administration"". ""Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the

decision-taker to the controversy in question and the decision or conclusion arrived at."" Reasons substitute subjectivity by objectivity. The

emphasis on recording reasons is that if the decision reveals the ""inscrutable face of the sphinx"", it can, by its silence, render it virtually impossible

for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons

is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another

rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling

out reasons for the order made, in other words, a speaking-out. The ""inscrutable face of sphinx"" is ordinarily incongrous with a judicial or quasi-

judicial performance.

For the reasons stated above, this Court is of the view that since the appellate authority failed to dispose of the appeal in a proper manner,-it is

proper, to meet the ends of justice, to remand matter to the appellate authority to appreciate the evidence and the materials available on record, in

a proper manner, to arrive at a right and just conclusion in accordance with law. Accordingly, the order impugned in this revision is set aside and

the matter is remitted back to the appellate authority, The Principal Subordinate Judge, Madurai, for disposing the appeal in a proper manner

within two months from the date of the receipt of the papers.

With the above direction, the revision is disposed of. No costs. Consequently, the C.M.P.No. 18235 of 2000 is closed.