K. Ugrapandian vs K.E. Ramalingam

K. Ravichandra Baabu, J.—The revision petitioner is the tenant. He is aggrieved against the order of eviction passed by the Rent Controller

confirmed by the Appellate Authority on the ground of wilful default. The Respondent/Landlord filed R.C.O.P. No. 179 of 2009 on the file of the

Small Causes Court, Chennai, seeking eviction of the petitioner/tenant on the grounds of wilful default and owner''s occupation. The said RCOP

was filed on 22.01.2009. The rent payable by the tenant is Rs. 3,225/- per month. He also paid an advance amount of Rs. 25,000/- towards

interest free security deposit. The default period stated in the Eviction Petition is from 01.07.2008 to 22.01.2009, being the date of filing the

Eviction Petition. The learned Rent Controller, while allowing the Eviction Petition on the ground of wilful default, dismissed the same in respect of

the other ground viz., owner''s occupation, by his order, dated 08.12.2009. The petitioner/tenant filed R.C.A. No. 1 of 2010 on the file of Rent

Control Appellate Authority. The learned Appellate Authority also confirmed order of eviction on the ground of wilful default through the

Judgment, dated 03.07.2012. Aggrieved against the concurrent findings of the authorities below, on the ground of wilful default, the present Civil

Revision Petition is filed before this Court.

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

The learned counsel appearing for the petitioner submitted that even though there was a default between 01.07.2008 to 31.12.2008, the same

cannot be treated as wilful default in view of the fact that admittedly the Landlord was in possession of an advance amount of Rs. 25,000/- and

consequently, he is not entitled to file Eviction Petition on the ground of wilful default. He further submitted that the petitioner in fact filed R.C.O.P.

No. 1322 of 2009 u/s 8 of the Tamil Nadu Buildings Lease and Rent Control Act, seeking permission to deposit the rent in to the Court. Even

though, the said RCOP came to be dismissed by the Court, on 08.12.2010, for want of certified copy only, the tenant has not filed any revision

against the said order so far. Therefore, it is the contention of the learned counsel that there is no wilful default on the part of the tenant in paying

the rent.

Per contra, the learned counsel appearing for the respondent/Landlord submitted that the tenant has committed wilful default from 01.07.2008

onwards and he has filed Section 8 application only on 02.07.2009, that too, after receiving the notice in R.C.O.P. No. 179 of 2009. Therefore,

the conduct of the tenant would show that there is no bona fide on his part. He further submitted that when the tenant''s R.C.O.P. No. 1322 of

2009 came to be dismissed on 08.10.2010, he has not chosen to file any revision, challenging the said order so far. Moreover, the subsequent

conduct of the tenant in not paying the periodical monthly rent either during the pendency of the RCOP or during the pendency of the appeal or

even during the pendency of this Civil Revision Petition up to this date would disclose the supine indifference being shown by the petitioner/tenant

against the Landlord in paying the monthly rent. Therefore, the learned counsel submitted that retaining of the advance amount itself cannot be

taken as a defence by the petitioner/tenant to contend that there is no wilful default.

The learned counsel appearing for the petitioner, in support of his submission, relied on K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed, to

contend that the tenant cannot be said to be wilful default, if the Landlord has not adjusted the advance amount towards the rental arrears. He also

relied on another decision reported in Latha and K.P. Sadhanandan Vs. L. Thangaraj, to substantiate the same contention.

Per contra, the learned counsel appearing for the respondent relied on a decision of this Court in K. Karuppiah Vs. B. Kubendran reported in

K. Karuppiah Vs. B. Kubendran, to contend that subsequent conduct of the tenant should also be taken note of, while considering the ground of

wilful default.

The petitioner is the tenant under the respondent and the said relationship is not in dispute. The respondent filed the Eviction Petition on two

grounds, namely, wilful default and owner''s occupation.

No doubt, the learned Rent Controller rejected the Eviction Petition sought on the ground of owner''s occupation. However, the same was

allowed on the ground of wilful default. When the tenant filed an appeal, the Rent Control Appellate Authority, also confirmed the finding of the

learned Rent Controller ordering eviction on the ground of wilful default. Thus, the only question to be decided in this Civil Revision Petition is as to

whether the order of eviction passed by the Courts below concurrently on the ground of wilful default is sustainable or not.

The respondent/Landlord filed the Eviction Petition by claiming that the petitioner/tenant committed wilful default commencing from 01.07.2008,

till the date of filing of the RCOP, namely, 22.01.2009. The monthly rent is stated as Rs. 3,225/- and that fact is not in dispute. The Landlord has

also admitted in the petition that he has received a sum of Rs. 25,000/- towards the interest free security deposit from the petitioner/tenant. When

an Eviction Petition is filed claiming that the tenant has committed wilful default in respect of a particular period, the primary duty is cost upon the

tenant to establish before the Rent Controller that there is no default committed by him or even if there is a default, it is not wilful.

But in this case, though the tenant has filed a counter before the learned Rent Controller by contending that he has paid the monthly rent up to

30.02.2009, the finding of the Rent Controller goes to show that such contention of the tenant is false and on the other hand, the Landlord''s claims

of wilful default from July 2008 is established by taking note of the fact that the rental arrears, even as on the date of filing of the RCOP exceeded

the excess advance available to the Landlord. In fact, the learned counsel appearing for the petitioner/tenant has submitted before this Court that

even though the petitioner has not paid rent for the default period, it was not wilful because of the advance amount available with the Landlord. He

has also contended that the tenant''s conduct in filing R.C.O.P. No. 1322 of 2009 u/s 8 of the said Act would also show that he was not having

any wilful intention to commit the default. Thus, from the contention raised by the learned counsel, it could be seen that the tenant is not denying the

default and on the other hand, he is trying to justify the same in view of the advance amount given to the Landlord and also the filing of Section 8

application.

Let me consider, these two contentions one by one. In so far as the retaining of the advance amount of the Landlord to the tune of Rs.

25,000/- is concerned, it could be seen that the default period commenced from 01.07.2008 and continued till the date of RCOP, dated

22.01.2009. Thus for 7 months, the rent was not paid. If 22,575/- representing the rent for 7 months is taken into consideration, still the advance

amount retained by the Landlord is not certainly in excess of the advance, which the Landlord is entitled to retain. This has been rightly found by

the learned Rent Controller, at paragraph 9 of his order. Therefore, the learned counsel for the petitioner is not justified in relying on the decisions

reported in Latha and K.P. Sadhanandan Vs. L. Thangaraj, as well as K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed, At any event, when the

default had continued even after filing of the RCOP till this date, the petitioner/tenant is not entitled to rely on the said decisions as both are factually

distinguishable.

The next contention of the tenant is with regard to the filing of Section 8 application by him to show his bona fide in not committing any wilful

default. In this case, RCOP came to be filed on 22.01.2009 seeking for eviction. Admittedly, only after receiving the notice in the said RCOP, the

tenant has filed R.C.O.P. No. 1322 of 2009 u/s 8 of the said Act seeking permission to deposit the rent into the Court. This application was filed

by him only on 2.7.2009. Therefore, the tenant, if at all, is having any bona fide on his part, he ought to have filed an application immediately on

refusal of landlord to receive the rent, after complying with the mandatory requirements contemplated u/s 8 of the said Act. But the fact remains

that he has chosen to file such application only after receiving the notice in R.C.O.P. No. 179 of 2009. Therefore, this conduct only shows that the

tenant has chosen to file such application only to escape from the clutches of eviction on the ground of wilful default.

Apart from that, when his RCOP came to be dismissed on 08.12.2010, till this date, he has not taken any steps to challenge the said order.

This also shows that the tenant has no bona fide. Therefore, the default committed by the tenant is undoubtedly wilful in nature.

It is further submitted by the learned counsel appearing for the Landlord that the tenant has not only committed wilful default during the period,

stated in the Eviction Petition and is also continuously committing the same all these years, during the pendency or RCOP, RCA and this Civil

Revision Petition.

Per contra, the learned counsel appearing for the petitioner submitted that he has in fact paid a sum of Rs. 1,03,200/- by way of demand draft

for the period from 01.01.2010 to 31.08.2012, for a period of 32 months in compliance with the order passed by this Court, dated 14.09.2012

made in M.P. No. 1 of 2013 in this Civil Revision Petition. The very conduct of the tenant in keeping the rent for continuous period of 32 months,

commencing from 01.01.2010 to 31.08.2012 and paying it in pursuant to an interim order of this Court would show that his conduct coupled with

wilfulness in not paying the rent is obvious and liable for eviction even by taking this subsequent conduct. In fact, the learned Rent Controller as

well as the Appellate Authority have found that the tenant has not paid the rent, even after filing of the RCOP and during the pendency of those

proceedings before the Court below.

At this juncture, it is useful to refer to the decision in K. Karuppiah Vs. B. Kubendran, wherein the learned Single Judge of this Court has

found that subsequent conduct of the tenant in not paying the rents even after filing of the revision, has to be considered as wilful default and liable

to be evicted on that reason also. The learned Judge in fact relied on an earlier decision in K.N. Gunalan represented by his power agent

Parimelazhagan and Another Vs. C. Santhalingam, in support of his conclusion. In this context it is to be noted that similar view has been taken in

decisions reported in 2000 (1) MLJ 757, and 1997(2) MLJ 467. If the tenant''s subsequent conduct, even after the filing of the RCOP continues

to be wilful in not paying the rent, he is certainly liable to be evicted from the premises not only on the ground shown in the Eviction Petition, but

also by taking note of such subsequent conduct. The tenant''s liability to pay rent to the landlord doesn''t cease merely because the landlord has

gone to the Court seeking for eviction. Paying rent is the liability which should continuously be discharged throughout the pendency of proceedings

as well. If such liability is not discharged after the commencement of eviction proceedings and being continued during the pendency of the same

also, then the cause of action for the landlord to file the eviction petition on the ground of wilful default is to be construed as existed not only on the

dare of filing of such petition and also is continuing throughout the proceedings.

Here in this case, except filing R.C.O.P. No. 1322 of 2009 and got it dismissed on 14.12.2010, nothing is placed before this Court to show

that the tenant has taken any steps to pay the rent to the Landlord so far. Therefore, the conduct of the tenant in not paying the rent to the Landlord

commencing from 01.07.2008 continuously shows that his conduct in not paying the rent is not mere default but also wilful. Therefore, the order

passed by the Rent Controller and confirmed by the Appellate Authority, in ordering the eviction of the tenant does not warrant any interference by

this Court while exercising the revisional jurisdiction. Accordingly, I find no merits in the Civil Revision Petition and consequently, the Civil Revision

Petition is dismissed and the Miscellaneous Petition is also dismissed. No costs.