Kulsumbai Mulla Jeewajee vs Madras Marine Private Limited

M. Fakkir Mohammed, J.—C.R.P. No. 2039 of 1982 has been filed by the landlady and C.R.P. No. 371 of 1982 has been filed by the

tenant against the orders of the appellate authorities in different appeals filed by the landlady and tenant as against the common order passed by the

Rent Controller in H. R. C. No. 2541 of 1979.

The landlady, who is the revision petitioner in C.R.P. No. 2039 of 1982 and respondent in C. R P. No. 371 of 1982 filed the eviction petition

on three grounds; viz., wilful default in the payment of rent u/s 10(2) (i), acts of waste to the building u/s 10(2) (iii) and requirement of the premises

for the landlady''s partnership business order Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960,

hereinafter referred to as the Act.

The learned Rent Controller gave finding on the first two grounds against the landlady, but found the third ground, viz., the requirement of the

building for the landlady''s partnership business, in favour of the landlady and ultimately passed an order of eviction. As against the order of

eviction, the tenant filed H R. A. No. 410 of 1981 on the filed of the VI Judge, Court of Small Causes at Madras, where as the landlady filed H.

R. A, No. 409 of 1981 on the file of the IV Judge, Court .of Small Causes at Madras as against the adverse findings on the other two grounds.

The appeal filed by the landlady on the ground of wilful default was allowed by the IV Judge of Court of Small Causes who . held that the tenant

has committed wilful default in the payment of rent and the appeal filed by the tenant was allowed by the VI Judge of Court Small Causes, Madras.

Hence these revision petitions, both by the tenant and the landlady.

So far as C.R.P. No. 371 of 1982 is concerned, the contention of the revision petitioner, who is the tenant, is that the landlady used to allow the

rent to be accumulated and collect the same afterwards, that after the refusal of the tenant to pay the enhanced rate of rent demanded by the

landlady, the landlady did not send her representative for collecting the rents and hence the rents due from May 1979 to July 1979 could not be

paid and that the accumulated rents were paid immediately after the receipt of notice under Exhibit P-36 from the landlady along with the reply

notice sent under Exhibit P-38.

The learned Counsel for the revision petitioner/tenant has cited the case reported in Ramaswamy Pathar v. Thiagaraja Chettiar (1982) 95 L.W.

444, and another case reported in Chithirai Vadivu Ammal v. Dr. Moses T. Sunder (1982) T. L.N.J. 57, rendered by me in support of the

contention that the default committed by the tenant cannot be deemed to be wilful as the landlady used to allow the rents to be accumulated. On

the other hand, it is contended on the side of the respondent herein, viz, landlady, that only on one prior occasion when the tenant committed

default in the payment of renta for February, March and April, 1977, the landlady condoned the delay and received the rent on 17th June, 1977,

that such condoning of the delay in the payment of rent on a single occasion cannot be taken advantage of by the tenant, that on no other occasion

the landlady received accumulated rents, that the tenant did not make any whisper in the reply notice given under Exhibit P-31 that because the

tenant refused to pay the enhanced rate of rent, when demanded by the landlady, the landlady did not send her representative demanding the rent

and that, therefore, it is only as an after-thought in the eviction petition such a ground has been invented. It is further contended that if really the

belated acceptance of rent as urged by the tenant in the counder was true, the tenant would have sent the rents for May, 1979 to July, 1979, either

by Money Order or would have deposited the rent amount in any bank as contemplated by the provisions contained u/s 8(2) of Act XVII of

1960, instead of waiting for the receipt of the notice from the landlady In support of the contention advanced on the side of the landlady the

learned Counsel has relied upon the decisions reported in G.K. Jose and Others Vs. Ramathal, , Nagalinga Josiar v. The Trust (1979) 2 M.L.J.

623, Lingambhotla Subbayya Vs. The Subordinate Judge and Another, , and Kesavan v. Vincent Pillai (1973)T.N. L.J.I.

The fact that the tenant has been in occupation of the demised building from 1976 and paying a monthly rent of Rs. 1,500, that the tenant had

fallen into arrears of rent for the months of February, March and April, 1971, and the same was received in lumpsum on 17th June, 1977, by the

landlady without protest, that subsequently the tenant had fallen into arrears only in May, June and July, 1977, and that, therefore, the landlady sent

registered lawyer''s notice under Exhibit P-36 claiming arrears of rent is not in dispute. The only reason advanced on the side of the tenant for the

default in the payment of the said arrears of rent is that, because the landlady demanded enhanced rate of rent and the tenant refused to pay the

same, the landlady did not send her representative to collect the rents. The tenant further contended that the default cannot be deemed to be wilful

in view of the fact that after receipt of notice the tenant paid the entire arrears and sent a reply notice under Exhibit P-38. Such a vital reason

should have been put forward on the earliest occasion, viz, when the landlady sent a lawyer notice and the tenant sent a reply notice. In Exhibit P-

38, reply notice, no whisper has been made about that reason. Therefore, since the reason, urged in the counter filed by the tenant is not a real

reason, the same had not been mentioned in Exhibit P-38 reply notice. Now, it has to be seen, in the above circumstances, whether the default

committed by the tenant is wilful or not.

It is well-settled in several judicial decisions in favour of the landlord that because on a prior occasion the delay or default in the payment of rent

was condoned by the landlady, the same cannot serve as a valid ground for the tenant committing default in the payment of rent in future also. Of

course, R.W. 1 appears to have stated in chief-examination that the landlady was in the habit of receiving accumulated rents. But in cross-

examination he has stated that the tenant had never committed default in the payment of rents and that the rents were paid promptly. Therefore, the

default committed on a single occasion cannot be taken as constituting the practice of the landlady in collecting the accumulated rents in a lump

sum. So far as the decisions rendered in Ramaswamy Pathar v. Thiagaraja Chettiar (1982)95 L.W. 444, and Chithrai Vaidivu Ammal v. Dr.

Moses T. Sundar (1982) T. L.N.J. 57, are concerned, they were cases in which it was established that the landlady allowed the arrears of rent to

get accumulated and then received the same and those decisions cannot be applied to this case at all. On the other hand the decisions rendered in

G.K. Jose and Others Vs. Ramathal, ., M. Nagalinga Josiar Vs. The Trust for building belonging to T.K.S.A.R. Punniyappan Nadar Sons and

Others, , Lingambhotla Subbayya Vs. The Subordinate Judge and Another, , and Kesavan v. Vincent Pillai (1973) T.N.L.J. 1, apply on all fours

to the facts of the present case.

It is not is dispute that the tenant did not make any attempt either to send the arrears of rent by Money Order or to deposit the same in any bank

or in Court, especially when the reason urged in the counter is that because the tenant refused to pay the rent at an enhanced rate when demanded

by the landlady, the landlady refrained from sending her representative to collect the rent. There is absolutely no excuse given as to why the tenant

did not comply with the said statutory provision contained in Section 8(2) of Act XVIII of 1960. Therefore, the finding given by the appellate

authority that the tenant has committed wilful default cannot be said to be erroneous or perverse. Hence, so far as the civil revision petition filed by

the tenant is concerned, there is absolutely no reason whatsoever to interfere with the decision of the appellate authority.

Coming to the revision petition filed by the landlady, viz,, C.R.P. No. 2039 of 1982, the conditions that have to be satisfied u/s 10(3)(a)(iii) have

to be considered Section 10(3)(a)(iii) is as under:

10(3)(a) A landlord may, subject to the provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in

possession of the building

(i)-----

(ii)-----

(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of business which he or

any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.

If the conditions laid out above are satisfied, the landlady is entitled to an order of eviction. The specific contention of the landlady is that the

building is required for the partnership business in which she is a partner, that the partnership business is now carried on only in a rental building

and not in any other building of her own and that therefore the demised building is required for the purpose of partnership business. It is not

disputed that the landlady is a partner in the partnership business, that such a partnership business is carried on in a rented building and that she is

not possessed of any other non-residential building in the concerned city.

Learned Counsel for the tenant contends that the requirement of the landlady for the partnership business is not her own requirement and that

therefore, she is not entitled to invoke the provision of Section 10(3)(a)(iii) of the Act. Learned Counsel for the respondent-tenant has not cited

any authority on this point. On the other hand, the learned Counsel for the revision petitioner has cited the case reported in Mahalakshmi Metal

Industries Vs. K. Suseela Devi, , in support of the contention that the requirement of premises by the landlady for her partnership business will

satisfy the requirement of Section 19(3) (a) (iii) of the Act. In paragraph 6, the single Judge of this Court has held that the Rent Controller, if he is

satisfied that the claim of the landlady is bona fide, shall make an order directing the tenant to put-the landlady in possession of the building. The

learned Counsel has also cited a decision reported in Chandra Agencies v. Kant ha Kumari and Ors. (1982) T.L.N.J. 454, which is direct on the

point. At page 457, it has been observed that in Danmull v. Syed Ali (1969) 1 M.L.J. 184 ILR (1969) 2 MaJ 731; 81 L.W. 432 : AIR 1969

Mod, 214, it was held that a partner could ask the premises on behalf of the firm. Even though the landlady is a partner in the firm, it cannot be

said that she is not carrying on a business. If a question will arise, whether a person is a business man or not and if that person is a partner in a

partnership business, it will certainly be held that the said person is a business man. There will be no other nomenclature for such a person, who is a

partner in a business firm. On such a view, it has to be found that the requirement of the premises for his partnership business u/s 10(3)(a)(iii) shall

be deemed to be a requirement of the landlady. Therefore, the contention raised on behalf of the tenant to the contra cannot be countenanced.

The learned appellate authority has found in paragraph 9 of its order that it here can be no doubt that the respondent herein is a partner of the

abovesaid partnership concern, that the respondent seeks an order of eviction on the ground that she who is the owner of the demised building,

requires the same for her partnership business, that the existence of the partnership business has been proved by the documents marked on the

side of the landlady as Exhibits P-33 to P-35 and that it is not challenged by the learned Counsel for the tenant that the partnership concern of

which the landlady is a partner is not doing any business at all. The learned appellate authority has also found in paragraph 10 of the order that

there is abundant proof that the premises bearing door No, 54 is a rented one (wherein the partnership business is carried in) and that the requisites

under the provisions of Section 10(3)(a)(iii) of the Act has been satisfied. In spite of the above findings, the only ground on which the appellate

authority has negatived the prayer for the order of eviction is that the landlady has been paying only a rent of Rs. 150 per mensem for the rented

building, whereas she is in receipt of Rs. 1.500 per mensem for the demised building, and that there is no evidence in proof of any inconvenience or

lesser area of the rented building under occupation and hence he was not inclined to think that the application for eviction is backed by any bona

fides. The above reason given by the appellate authority is quite against the principles discussed by him earlier with reference to Section 10(3)(iii)

(iii) of the Act and his finding that the requirements of Section 10(3)(a)(iii) have been fully complied with. Obviously, the learned appellate authority

has taken into consideration extraneous matters, which are not germane for the consideration of the point in issue and hence his conclusion, being

quite against his own finding as to the requirements of Section 10(3)(a)(iii) had been satisfied, is perverse and erroneous in law. The conclusion

cannot be sustained as the finding on the question of bona fides is not based on any legal evidence or any judicial decision. It can also be observed

that the said finding is capricious and cannot be sustained. Therefore, the finding of the appellate authority passed in H.R.A. No. 410 of 1981 has

to be set aside.

In the result, therefore, C.R.P. No. 371 of 1982 is dismissed and C.R.P. No. 2039 of 1982 is allowed. There will be single costs payable by

the tenant to the landlady and the costs will be paid in C.R.P. No. 2039 of 1982. The tenant is granted three months time to vacate the demised

premises.