M.S. Premchand vs K. Karuppaiah Nadar and Others

M. Karpagavinayagam, J.—M.S. Premchand, the petitioner herein is the landlord, Karuppiah Nadar, the partner of Sri Jagadeeswara Vilas,

the first respondent is the tenant. In the petition filed by the petitioner before the Rent Controller, Madurai, in R.C.O.P. No. 166 of 1984, an order

was passed against the respondents 1 and 2 evicting them on the ground of wilful default. On being aggrieved, the tenants/the respondents 1 and 2

herein filed an appeal in R.C.A. No. 141 of 1990 before the Appellate Authority, Madurai. The said appeal was allowed and the order of eviction

was set aside. Hence, this revision by the landlord.

According to the landlord, the petitioner herein, the tenant fell in arrears of rent for 11 months and as he did not make the payment for 11

months'' arrears wilfully, he is liable to be evicted u/s 10(2)(1) of the Act. According to the tenant, he has already deposited the entire amount in

the court and as such, there is no arrears.

The Rent Controller on consideration of the evidence, oral and documentary from both sides, concluded that there is a wilful default in making

the payment of arrears for 11 months on the part of the tenant and directed the respondents 1 and 2 to vacate and hand over the premises to the

landlord.

The appellate authority, while setting aside the order of eviction, mainly would rely upon the factors relating to the earlier petitions filed by the

petitioner in R.C.O.P. No. 520 of 1981 for additional accommodation and R.C.O.P. No. 700 of 1981 for wilful default in payment of rent for

three months from July, 1981 to September, 1981 and the same had been dismissed by the Rent Controller and the appeals by the appellate

authority. According to the impugned judgment of the appellate authority, it was earlier decided by the authorities in R.C.O.P. Nos. 520 and 700

of 1981 that there is no wilful default. It is also observed that the arrears for 11 months was subsequently paid by the tenant on the orders of the

court in M.P. No. 1119 of 1984 filed u/s 11 (4) of the Act and as such, it cannot be considered to be a wilful default.

On hearing the learned Counsel Mr. Kandasamy, appearing for the petitioner and the learned Counsel Mr. Thiagarajan, appearing for the

respondents 1 and 2, and also on perusal of the impugned orders and other records, I am of the opinion that the above view taken by the appellate

authority is not sustainable under law.

At the outset, I shall mention that in para. 11 of the impugned judgment rendered by the appellate authority, details have been mentioned relating

to the facts and figures showing the entire arrears having been paid to the petitioner/ landlord. On verification, it is revealed that those details are

not factually correct. Therefore, it can be very well concluded that on the date of filing of the petition requesting for eviction on the ground of wilful

default, that is on 5.3.1984, there was arrears for 11 months.

It is also an admitted fact that the petitioner filed an application in M.P. No. 1119 of 1984 u/s 11 (4) of the Act claiming arrears of Rs. 3,600.

Though this application was contested by the tenant, ultimately, the Rent Controller ordered for the payment of Rs. 3,600 by the order dated

4.9.1986. Only thereafter, the said amount was paid on 7.9.1986.

Though the above application u/s 11(4) was contested by the tenant initially, the order passed by the Rent Controller directing the tenant to

make the payment of Rs. 3,600 towards the arrear of rent was not challenged by the tenant by filing an appeal. This would also make it clear that

the tenant did not make the payment of arrears for 11 months till 4.9.1986, that is, the date of the order in 11(4) application. There is also no

explanation as to why he did not make the said payment to the landlord either before the filing of the application or at least at the time of first

hearing. The appellate authority has wrongly observed that there is no details as to the period of months for which there was arrears.

It is the case of the petitioner that though there was arrears for 32 months, the amount was paid only for 21 months earlier and the amount for

the other period from April, 1983 to February, 1984, that is for 11 months was not paid. In such circumstances, the appellate authority cannot find

support from the earlier decision arrived at by the Rent Controller in R.C.O.P. Nos. 520 and 700 of 1981 which relate to the different period. The

Rent Controller has elaborately discussed this aspect and given proper reasonings to conclude that the tenant has committed wilful default.

No doubt, it is true that the tenant had deposited the arrears of rent for 11 months pursuant to the order made in M.P. No. 1119 of 1984 filed

u/s 11(4) of the Act. But, it shall be noticed that the tenant has not chosen to deposit the rent voluntarily till such a direction was issued u/s 11 (4)

of the Act. In fact, even after filing of the application u/s 11(4), the tenant has chosen to resist the eviction petition.

It has been decided in so many cases that if the tenant paid the rent which was in arrears immediately after the filing of the eviction petition at

any time before the first hearing, it cannot be said that the tenant has committed a wilful default. In those cases, it is significant to note that the

explanation offered by the tenant for not paying the rent earlier was found satisfactory and in the context of that explanation and in the light of the

payment of arrears of rent as stated above, this Court would hold that there was no wilful default on the part of the tenant, on paying the rent

immediately after the filing of the petition for eviction.

But, that would not help the tenant in the instant case, as the mere fact of paying the rent pending proceeding without there being any

acceptable explanation for non-payment of the same as and when it became due is not sufficient. As indicated above, in the instant case, there is

neither any explanation for non-payment nor making payment voluntarily, immediately after the filing of the eviction petition. To put it briefly, mere

payment of rent by the tenant without explanation for the delayed payment and that too, in pursuance of the order passed u/s 11(4) of the Act, as

is done in this case, would not absolve the tenant of the disqualification, in which he had suffered already.

Under the facts and circumstances of the case, particularly in the light of the evidence of P.W.1 and Exs.P-1 and P-2 and for the reasons

discussed above, I am satisfied that there are substantial materials evidence to show that the respondent-tenant had committed wilful default in

making the payment of arrears from April, 1983 to February, 1984 and as already indicated the mere deposit of arrears of rent pursuant to the

order passed in M.P. No. 1119 of 1984 filed u/s 11 (4) of the Act, will not absolve the tenant from the allegation of wilful default which he had

already suffered in the eye of law.

The principles laid down in The Nilgiris Co-operative Marketing Society Vs. C.T. Uthandi, ; B. Anraj Pipada Vs. V. Umayal, and T. Pramod

Wilson and 3 others Vs. Dr. Hari Ramesh, would squarely apply to the present facts of the case. Therefore, I am obliged to hold that the tenant

had committed wilful default in paying the rent, in the eye of law, which cannot be erased merely because he had deposited the arrears of rent in

pursuance of the order of the court without tendering any other acceptable explanation for the delayed payment.

The learned appellate authority, while setting aside the order of eviction of the learned Rent Controller, has not gone into this aspect and on the

contrary, the materials which are not factually correct were relied upon by the Appellate Authority to set aside the well considered order of

eviction.

In the result, the revision is allowed. Consequently, the order of the learned appellate authority is set aside and the order of the learned Rent

Controller is restored. The respondent-tenant is given two months'' time to vacate and hand over the vacant possession of the petition premises to

the revision petitioner. There is no order as to costs.