Mrs. Dhakshayani vs Mrs. V. Suseela and Others

G. Rajasuria, J.—Inveighing the orders dated dated 8.9.2009 passed by the VIII Small Causes Court, Chennai(Appellate Authority) in

R.C.A. No. 644 of 2006, partly reversing the judgment and decree dated 3.4.2006 passed by the X Small Causes Court, Chennai, in RCOP No.

1559 of 2005, these civil revision petitions are focussed.

A ''resume'' of facts absolutely necessary and germane for the disposal of this revision petition would run thus:

(i) The respondents herein filed the RCOP No. 1559 of 2005 on various grounds as against the revision petitioner/tenant, including the ground of

''wilful default''.

(ii) Before the Rent Controller on the side of the landlords one V. Kirubanandham was examined as P.W.1 along with Govindarajan as P.W.2 and

Exs.P1 to P5 were marked. On the side of the tenant, she examined herself as D.W.1 and marked Exs.R1 to R4.

(iii) Ultimately, the Rent Controller dismissed the RCOP on all grounds.

(iv) As against the said order, appeal R.C.A. No. 644 of 2006 has been filed before the appellate authority. After hearing both sides, the appellate

authority, modified the order of the Rent Controller by confirming the dismissal of the RCOP on all other grounds, except the ground based on

''wilful default'' in paying the rent and accordingly ordered eviction.

Being aggrieved by and dissatisfied with the order of the appellate Court, this revision has been focussed on various grounds, which could

tersely and briefly be set out thus.

(i) The appellate authority mis-understood the facts placed before him and erroneously held as though no notice was issued by the tenant calling

upon the landlord to specify the name of the bank in which she could deposit the rent.

(ii) The appellant authority also failed to take notice of the contumacious conduct of the landlord in refusing to receive the rent and returning the

same.

(iii) The appellate authority did not consider the genuine intention of the tenant in approaching the Court with an application u/s 8(5) of the Tamil

Nadu Buildings (Lease and Rent Control) Act and in depositing the same well before the landlord filing the RCOP. In one breathe the appellate

authority held that the rent was not Rs. 1000/- per month, as alleged by the landlord, but in another breathe he would give a finding as though the

tenant was wrong in sending the Money Order quantifying the rent in a sum of Rs. 500/- per month.

The learned Counsel for the revision petitioner/tenant reiterating the grounds of revision would develop his argument, the warp and woof of them

would run thus:

(i) The appellate authority applied the law erroneously to the facts and circumstances of the case.

(ii) The appellate authority, ought to have seen as to whether there was wilful element in not paying the rent by the tenant.

(iii) The appellate authority should have, considering the genuine steps taken by the tenant, held that there was no wilful element involved in non-

payment of rent for the period between October 2004 and March 2005.

Accordingly, the learned Counsel has prayed for setting aside the order of the appellate authority and for restoring the order of the Rent Controller

in dismissing the RCOP in toto.

Per contra, the learned Counsel for the respondents/landlords, by way of torpedoing and pulverising the arguements as put forth and set forth on

the side of the revision petitioner/tenant, would develop his arguments, which could tersely and briefly be set out thus:

(i) There are catena of decisions to the effect that the tenant cannot try to take shelter by filing an application u/s 8(5) of the Act belatedly and in

depositing the rent under it.

(ii) There should be strict compliance with Section 8 of the Act. But in this case, the tenant committed ''wilful default'' in paying the rent. On receipt

of notice dated 23.2.2005 from the landlord demanding payment of rent, the tenant dished out various theories, in order to camouflage and

conceal his own ''wilful default'' in paying the rent.

(iii) Absolutely there is no valid explanation for non-payment of rent from October 2004 to March 2005. If at all the landlords allegedly demanded

higher rent over and above the agreed rent, then it is not known as to what prevented the tenant to approach the Court soon after October 2004,

but on the other hand, she filed the application u/s 8(5) of the Act only on 20.4.2005.

(iv) The cause of auction which has arisen in favour of the landlords would not get obliterated because of the filing of the application u/s 8(5) of the

Act by the tenant long after the arisal of the cause of action in favour of the landlords.

Accordingly, the learned Counsel prays for dismissal of the revision petition.

The point for consideration is as to whether the revision petitioner/tenant committed ''wilful default'' in paying the rent from October 2004 till

March 2005 as held by the appellate authority and whether there is any infirmity in the order passed by the appellate authority?

The whole kit and caboodle of the facts and figures as found displayed and demonstrated, exposed and expatiated in the form of typed set of

papers before me, including the arguments submitted on either side, would be to the that there was undoubtedly non-payment of rent from October

2004 till Mach 2005. Trite the proposition of law is that mere evidence showing that there was non-payment of rent for a particular period will not

lead to the conclusion that the non-payment was ''wilful''. It is the bounden duty of the landlord to establish convincingly by adducing oral and

documentary evidence that there occurred ''wilful default'' in payment of rent. Hence, in this case, it has to be seen as to whether that element of

''wilful default'' stood established in this case.

At the outset itself, I would like to formulate an Universal logical proposition as under:

All cases of non-payment of rent are not cases of wilful default. Once a tenant is shown as defaulter in paying rent, he cannot be labelled as a

person who committed wilful default. In order to constitute ''wilful default'', the following elements should be there, as found delineated in the

decisions of the Honourable Apex Court in M/S Chordia Automobiles Vs. S. Moosa and Others, .

Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of

rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of

default contained the disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the

explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Furtuher, we find the conduct of the appellant throughout

in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the

appellant cannot be held to be a wilful defaulter.

In S. Sundaram Pillai v. V.R. Pattabiraman this Court had occasion to consider the word ''wilful default'' u/s 10(2) of the aforesaid Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960 which is reproduced below: (SCC pp.605-06, paras 21-26)

Before, however, going into this question further, let us find out the real meaning and content of the word ''wilful'' or the words ''wilful default''.

In the book A Dictionary of Law by L.B. Curzon, at p.361 the words ''wilful'' and ''wilful default'' have been defined thus:

''Wilful'' -- deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.

''Wilful default'' -- Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.

In other words, ''wilful default'' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and

Phrases, Vol 11-A (Permanent Edition) at p.268 the word ''default'' has been defined as the non-performance of a duty, a failure to perform a

legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word ''wilful'' has been very clearly defined thus:

''wilful'' -- intentional; not incidental or involuntary;

- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or

inadvertently;

- in common parlance word ''wilful'' is used in sense of intentional, as distinguished from accidental or involuntary.

p.296 -- ''Wilful'' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is

accidental, negligent or involuntary.

In Vol.III of Webster''s Third New International Dictionary at p.2617, the word ''wilful'' has been defined thus:

governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.

24.The word ''default'' has been defined in Vol. I of Webster''s Third New International Dictionary at p.590 thus:

to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.

In Black''s Law Dictionary (Fourth edn.) at p.1773 the word ''wilful'' has been defined thus:

''Wilfulness'' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn

purpose, but not with malice.

The word ''reckless as applied to negligence, is the legal equivalent of ''wilful'' or ''wanton''

Thus, a consensus of the meaning of the words ''wilful default'' appears to indicate that default in order to be wiful must be intentional,

deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant

commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is

not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts

referred to above.

As such keeping in mind the aforesaid dictum, I would like to analyse the facts before me as well as the arguments advanced on both sides.

The first and foremost document emerged between the landlords and the tenant, so far this case is concerned, Ex.P1 is the notice dated

23.2.2005 issued by the landlords as against the tenant. Much has to be stated regarding the said notice. In paragraph No. 2 of it there is nothing

to indicate and can note as from which period the tenancy commenced. However, the learned Counsel for the revision petitioner/tenant would

appropriately and convincingly point out that the tenancy commenced during early 1970''s. The way in which the facts got projected in paragraph

No. 2 of Ex.P1 would connote and denote as though ever since 1970 the rent was Rs. 1000/-

The Rent Controller clearly gave his finding to the effect that there was nothing to indicate and exemplify that at any point of time the tenant

paid the rent at the rate of Rs. 1000/- per month or for that matter at any point of time she agreed to pay such rent of Rs. 1000/- per month.

The appellate authority also gave a categorical finding to the effect that there was nothing on evidence to show that the tenant agreed to pay a

sum of Rs. 1000/- per month as rent. When such is the position, the vague statement as contained in paragraph No. 2 of the notice dated

23.2.2005 connotes and denotes that the landlords somehow or other wanted to project the tenant in poor light by pointing out as though she

committed default in payment of rent at the rate of Rs. 1000/- per month, which as per the findings of both the Courts below was never agreed to

be paid by the tenant.

At this juncture my mind is reminiscent and redolent of the following adage ""He who seeks equity must do equity and he who comes to equity

must come with clean hands"".

The landlords, who want to mulct the tenant with the plea of ''wilful default'' should necessarily come to the Court with clear pleadings and

proof, but, in this case it is quite obvious and axiomatic that the landlords did not approach the Court with clear facts and evidence.

In response to the said notice dated 23.2.2005 sent by the landlords, the tenant gave reply notice on 8.3.2005 and along with that she also

enclosed the Demand Draft for Rs. 2,500/- quantifying the five months'' rent at the rate of Rs. 500/- per month. But the Demand Draft was

unjustifiably returned by the landlords, perhaps on the plea that the agreed rent was Rs. 1000/- p.m., which according to both the Courts below

was not so.

In fact, by the said reply notice, the tenant also called upon the landlords to specify the name of the bank, so that she would be in a position to

deposit the rents, for which also there was no positive response.

I recollect and call up the procedures as contemplated u/s 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The tenant is enjoined

first to call upon tenant landlord to specify the name of the bank so as to deposit the rent and on such failure on the part of the landlord, the tenant

should send the rent by Money Order depressed by the money order commission. If the Money order amount is refused to be received by the

landlord, then lastly the tenant should take steps to deposit it in Court by invoking Section 8(5) of the Act.

The learned Counsel for the respondents/landlords cited several decisions and it is just and necessary to refer to them:

(i) 2002 (4) CTC 572 E. Palanisamy v. Palanisamy (D) by Lrs. and Ors. certain excerpts from it would run thus:

It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by landlord to accept rent,

the tenant is required to call upon the landlord by way of a notice to specify the name of a Bank in which rent could be deposited by the tenant to

the credit of the landlord. If the landlord specify the name of the Bank to deposit the rent, there is an obligation on the part of the tenant to make

the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a Bank inspite of being called

upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the

commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent

Controller seeking permission to deposit the arrears of rent under Sub-section (5) of Section 8 of the Act.

Mr. Sampath, the learned Counsel for the appellant argued that since the appellant-tenant had deposited the arrears of rent in Court, it should

be taken as compliance of Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no

eviction order could have been passed against the appellant on that ground. According to the learned Counsel, the Court should not take a

technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders

that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as

much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to

accept this contention advanced on behalf of the appellant by the learned Counsel. The tenant legislation is normally intended for the benefit of the

tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis

of strict compliance of the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It

prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by

step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance

of the procedure is necessary. The tenant cannot straight away jump to the last step i.e. To deposit rent in Court. The last step can come only after

the earlier steps have been by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh Vs. Ganpat Lal and another,

and M. Bhaskar Vs. J. Venkatarama Naidu, Represented by his Power of Attorney Holder A. Narayanaswamy Naidu, .

(ii) 1997 2 L.W. 571 S. Sundararajan v. S.A. Viswanathan Chetty and Anr. Certain excerpts from it would run thus:

...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. 569 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 on 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 in to Court Section 8(5) of the Act is intended, but it also serves to very vital and important purpose in that by

resorting to a 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

usal 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....

(iii) Abdul Fatha and another Vs. Villayudham and another, certain excerpts from it would run thus:

The decision relied on by the learned Counsel for the respondents in Padmavathi Ammal Vs. Gopal, arose u/s 8 of the Act. Pratap Singh, J.

held that when the tenant chose to exercise the enabling provision, he should take steps one after another as laid down in the procedure and only if

the landlord still refused to receive the rent, then he could come to the court with a petition u/s 8(5) of the Act. In that case, the tenant had skipped

Section 8(4) of the Act. The learned Judge held that the tenant was obliged to take the step contemplated u/s 8(4) of the Act and since he had not

done it, the petition filed by him u/s 8(5) of the Act had to necessarily fail. I have already held that the petition filed by the revision petitioners u/s 9

of the Act was misconceived. Assuming that a wrong section had been quoted and that it was only a petition u/s 8, in view of the decision of

Pratap Singh, J. it has to be held that the authorities below rightly rejected the petition inasmuch as the tenants has jumped steps.

(iv) 2000 2 LW 699 T. Gopalasamy and T. Radhakrishnan v. R. Renganathan, R. Narayanan, R. Vijayaraghavan, R. Neelamegham, R.

Srinivasan, and Tmt. Rajamuthukone, certain excerpts from it would run thus:

Section 8 of the Act deals with consequences where landlord refuses to issue receipt or refuses to receive rent. Section 8(1) says whenever

landlord receives any payment towards rent or advance, he shall issue a receipt duly signed by him for the actual amount of rent or advance

received by him. Section 8(2) says that where landlord refuses to accept or evades the receipt of rent lawfully payable to him, tenant may by notice

in writing, require landlord to specify within ten day from the date of receipt of notice by him, a bank into which the rent ma be deposited to he

credit of landlord. If landlord specifies the bank, tenant shall deposit the rent as and when it becomes due in that account till he gets further

instruction of landlord. As per Section 8(4), if landlord does not specify bank, tenant is bound to remit the rent to landlord by money order, after

deducting the money order commission. In spite of sending rent by money order, if landlord refuses to accept the same, tenant can deposit the

amount in Court u/s 8(5) of the Act.

A mere poring over and perusal of those excerpts including the whole of those judgments would amply make the point clear that the tenant

should not have the sadistic pleasure in depositing the arrears of rent straight away in Court by invoking Section 8(5) of the Act, so as to put the

landlord into discomfiture in taking back the amount from the Court. But on the other hand, in the event of the landlord refusing to receive the rent,

the tenant should call upon the landlord to specify the name of the bank so as to deposit the rent and on such failure on the part of the landlord, the

tenant should send the rent by Money Order depressed by the money order commission. If the Money order amount is refused to be received by

he landlord, then lastly the tenant should take steps to deposit it in Court by invoking Section 8(5) of the Act.

In this case, the records would unambiguously and unequivocally, palpably and pellucidly make the point clear that the tenant meticulously

adhered to the aforesaid procedures.

At one point of time the learned Counsel for the respondents/landlords would submit that the tenant, without deducting the money order

commission, sent the entire rent, which was not in accordance with law.

I recollect the maxim ''Culibet licet juri pro se introducto renunciare -- Any one may waive or renounce the benefit of a principle or rule of law

that exists only for his protection.

The said maxim would highlight that if any provision of law is for benefiting a person and that person can very well renounce it, provided it is

not against public policy. The deduction of money order commission is to benefit the tenant and if the tenant comes and says that he is not so

particular in deducting that money order commission while sending the rent, then it is the landlord, who is going to be benefited and in such a case

the landlord could not try to press into service the aforesaid point in his favour.

In fact, the learned Counsel for the respondents/landlords relied on the Judgment of the Honourable Apex Court reported in 2002 (4) CTC

572 E. Palanisamy v. Palanisamy (D) BY Lrs. referred to supra.

No doubt in that decision, the Honourable Apex Court extracted the very relevant Section of law and also in paragraph Nos. 4 and 5 of the

Judgment detailed and delineated the ingredients. Nowhere the Honourable Apex Court stated that if money order commission is found not

deducted by the tenant to his own detriment then it will amount to non-compliance with the mandate of law. No more elaboration in this regard is

required.

The learned Counsel for the tenant is correct in his argument that the appellate authority without properly reading the reply notice dated

8.3.2005 (Ex.R2) of the tenant held as though the tenant did not call upon the landlords to specify the name of the bank, when in fact, in the reply

notice there is a specific request to that effect made by the tenant. The tenant also subsequently sent the money order for Rs. 3000/- representing

six months'' rent, including the rent for the period from October 2004 till Februay 2005 and that was refused by the landlords for reasons best

known to themselves. Subsequently, alone application u/s 8 of the Act was filed and in that, the Rent Controller correctly permitted the tenant to

deposit the rent.

It is therefore palpably and pellucidly, obviously and axiomatically clear that the dispute arose because of the landlords'' conduct and not

because of the tenant. Had the landlords passively accepted the rent of Rs. 500/- p.m. from the tenant then there would have been no necessity for

the arisal of dispute between them.

It is a well settled proposition of law that in matters of this nature, preponderance of probabilities should be taken into account. The very act of

the landlords in refusing the Demand Draft as well as the Money Order bespeaks volumes to the effect that the landlords somehow or other

intended to evict the tenant.

The learned Counsel for the landlords would specifically stress upon the fact that from October 2004 onwards till February 2005, no steps

have been taken by the tenant to tender the rent or deposit the rent; and only after the issuance of the notice by the landlords, the tenant took some

action, which are not tenable.

I would like to point out that simply because from October 2004 onwards, apparently there seems to be non-payment of rent by the tenant,

the Court cannot, as already highlighted supra, jump to the conclusion that the non-payment of rent was ''wilful''. It is so clear from the conduct of

the landlords that it was they who refused to receive the rent and not the tenant, who refused to pay the rent.

I recollect and call up the following maxim:

Acta exteriora indicant interiora secreta'' -- External acts indicate undisclosed thoughts.

Here, the overt acts on the part of the landlords would clearly display and demonstrate that they are at fault. The learned Counsel for the

landlords would submit that specifically the tenant did not plead as to when the rent was tendered and the landlords refused. But on the other hand

the tenant would contend that the representative of the landlords did not approach the tenant for collecting the rent etc.

In my opinion such an argument on the side of the landlords fails to carry conviction with this Court for the reason that in the notice dated

23.2.2005, the landlords tried to project the case as though the monthly rent was Rs. 1000/- from the inception of the tenancy, for which, in the

reply notice, the tenant pointed out that when the rent at the rate of Rs. 500/- per month was tendered the landlords evaded to receive, obviously

because the landlords were not willing to receive the rent and their intention stands exemplified and displayed by their subsequent conduct.

To the risk of repetition and pleonasm, but without being tautalogous I would like to refer those decisions on the ground of ''wilful default''

referred to supra.

A mere poring over and perusal of those excerpts, including the whole judgments, would clearly show that in matters of this nature, when there

was some dispute between the landlord and the tenant regarding the quantum of rent, the element of ''wilful default'' cannot be presumed.

Here, my discussion supra would display and demonstrate that the tenant correctly and appropriately adhered to the various stages

contemplated u/s 8 of the Act, but the appellate authority failed to interpret the factual evidence and understand it in proper perspective. As such, I

would like to disagree with the view taken by the appellate authority, which is quite antithetical to the evidence available on record and accordingly,

the order of the appellate authority is set aside and the order of the Rent Controller is restored into.

In the result, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.