N. Janakiraman vs C.B. Radhakrishnan

The tenant/respondent in R.C.O.P.No.42 of 99 is the revision petitioner herein. The respondent herein, the landlord, filed R.C.O.P. for eviction

u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act ).

The case of the petitioner is as follow. The petitioner is the owner of the petition mentioned property. The respondent took the property on lease

on 6.2.93 to run Rubber Stamp and Block making business under the name and style of ""Asha Process and Printers"". The respondent paid a sum

of Rs.5000 towards advance to the petitioner. The present monthly rent for the premises is Rs.450. The petitioner also received a sum of Rs.150

from the respondent every month as amenities charges, which is included in the aforesaid amount. The petitioner is in the habit of issuing receipts

which include the amenities charges. The respondent agreed to pay rent on the 6th of every English Calendar month. The respondent failed to pay

monthly rent from March 1999 onwards. The respondent has no manner of right to withhold the rent. Repeated demands of the petitioner to pay

the rent fell on the deaf ears of the respondent. The respondent has shown supine indifference in paying the monthly rent to the petitioner. The

default in payment of rent is highly wilful. Further, a case has been registered by the Town Police against the respondent in Crime No.483/99 under

Sections 473 and 420 r/w 511, IPC for counterfeiting the paid seal of ""Kannan Departmental Stores"". The above act of the respondent would

show that the petition mentioned property was misused by the respondent for illegal purposes. The respondent filed suit for permanent injunction

not to vacate him by force against the petitioner in O.S.No.412 of 1999. The respondent has falsely stated in the above suit that the monthly rent is

Rs.300. This itself would show that the respondent has not tendered the correct rent and therefore, the default is nothing but wilful. The allegation

in the said suit that the petitioner refused to receive the rent is false. The respondent did not tender the rent at all. Therefore, the respondent is liable

to vacate the petition mentioned property and deliver possession to the petitioner.

The case of the respondent is as follows. It is admitted that the petition mentioned properly has been leased out to this respondent. The date of

commencement of the lease is a true one. The respondent has paid Rs.5000 as advance. At the initial stage of the lease, the rent was Rs.100 per

month and then it was increased to Rs.150. At present the rent is Rs.300. The respondent does not admit that the present rent is Rs.450 per

month. In February 1999, when the respondent met the petitioner and paid the rent of Rs.300, the petitioner insisted the respondent to pay rent at

Rs.1000 per month. But the respondent was not amenable to that. Aggrieved by this event, the petitioner instigated his friend and owner of

Kannan Departmental Stores to make a false complaint against the respondent. Accordingly, the police has filed a false case in Crime No.483 of

The respondent met the petitioner and asked to receive rent of Rs.300 from the month of March to August 1999. But the petitioner refused to

receive the rent. Therefore, there is no other way except to file the suit and accordingly the respondent has filed the suit O.S.No.412 of 99 and

paid 6 months'' rent which comes to Rs.1800. The respondent has paid amenities charges. There is no default and wilful default in paying the rent.

The respondent has deposited the rent before the Court.

On a consideration of oral and documentary evidence, the Rent Controller has held that the tenant has committed wilful default in payment of

rent and consequently, the R.C.O.P. was allowed giving three months'' time to the tenant to vacate the property. Aggrieved by the said order of

eviction, the tenant preferred an appeal in R.C.A.No.15 of 2000. The learned Appellate Authority, namely, the Principal Sub-Judge, Erode by

judgment dated 22.12.2000 dismissed the appeal. Aggrieved by the said judgment of the appellate authority, the present revision is filed.

The landlord entered appearance through caveat. The tenant has raised the following contentions in the revision:-

As the landlord refused to receive the rent, the tenant filed a suit against the landlord and deposited the rent. No notice was issued to the tenant by

the landlord demanding payment of rent and that directly, R.C.O.P. was filed on 30.9.99. It is not clearly mentioned in the eviction petition that the

rent and amenities charges are claimed separately. In the counter foil receipts, the signature of the tenant was not obtained. The District Munsif

who tried the suit as well as R.C.O.P, passed orders in both the suit and R.C.O.P. which are not valid in law. The Courts below failed to note that

eviction would arise only on wilful default in payment of rent after calling upon the tenant to pay the rent. The petitioner had paid rent in Court and

obtained receipts. It is not even stated in the petition for which period, the petitioner committed default. The respondent ought to have given a

notice to the tenant and waited for 60 days to call the failure to pay the rent as wilful default. Learned counsel for the revision petitioner, namely,

Prof. Krishnaswamy contended with reference to the findings of the Courts below and also the documents that the Rent Controller as well as the

appellate authority have committed error in ordering eviction and that therefore, the above order is liable to be reversed in this revision.

On the other hand, learned counsel for the respondent contended that no notice is necessary to the tenant before filing R.C.O.P, and that notice

contemplated u/s 10(2) of the Act is not mandatory and that the tenant has not filed an application before the Rent Controller for deposit of the

amount u/s 8 of the Act and that since there was no valid tender or deposit, the default in payment of rent is nothing but wilful and that there are

sufficient pleadings in the petition regarding the agreed rent and wilful default, etc.,

There is no dispute that the petition mentioned property was leased out to the revision petitioner/tenant on 6.2.93 for non-residential purposes

and that the tenant has also paid Rs.5000 as advance. It is also seen from the records that the present R.C.O.P. was presented on 30.9.1999.

Before that the revision petitioner/tenant filed O.S.No.412 of 1999 on 3.9.99 for an injunction restraining the defendant from interfering with the

peaceful possession until evicted under due process of law.

On consideration of the entire oral and documentary evidence, the Rent Controller has given a finding that the rent including amenities charges is

Rs.450 and that the landlord used to give two receipts one for Rs.300 and another receipt for Rs.150 and that the tenant/revision petitioner has

committed wilful default in payment of rent. Learned Counsel for the revision petitioner inter alia contended that for the first time in evidence, it is

stated by the landlord that the petitioner/tenant has to pay two amounts one towards rent and another for charges for amenities and that the above

fact has not been clearly mentioned in the eviction petition. It is, further, contended that there is no pleading in the petition as to what are the arrears

of rent and amenities charges payable by the tenant and that the plea regarding wilful default has not been clearly pleaded in the eviction petition.

On the other hand, learned counsel for the respondent/landlord contended that there are sufficient pleadings in the petition to bring the petition u/s

10(2) of the Act. In the petition, in paragraph 4(a), it is stated that the monthly rent for the petition mentioned premises is Rs.450 and that the

petitioner also received a sum of Rs.150 as amenities charges, which is included in the aforesaid amount and that the petitioner is in the habit of

issuing receipts for the rent which includes the amenities charges. The words ""issuing receipts"" would show that more than one receipt used to be

issued by the landlord. The plea that a sum of Rs.150 is included in the aforesaid rent will show that the rent for the premises is Rs.300 and that

Rs.150 is charged as amenities charges. It is also stated in paragraph 4(b) that the tenant failed to pay monthly rent from March 1999 onwards. It

is, thus, clear that the landlord has pleaded in the petition that the tenant has not paid rent from March 1999. In the same paragraph it is also stated

that default in payment of rent is highly wilful. In the above circumstances, the contention of the revision petitioner that. R.C.O.P. is bereft of

material particulars has to be rejected.

Before proceeding to decide the crucial issue involved in this proceeding, it becomes necessary to give a finding on the question, whether the

finding of the Rent Controller that the total rent payable by the tenant is Rs.450 is based on evidence. It cannot be disputed that the amount paid

towards amenities would also be the rent. In Sakuntala Rajappa Vs. K. Kamala, , this Court has held that the term ""Rent"" would include all

payments agreed to be paid by the tenant to his landlord for the use and occupation, not only of the building and furniture, but also for electricity,

water and other amenities and that in other words, any sum of money which the tenant agrees to pay as consideration for the tenancy would be

rent. Therefore, it has to be held that the charges paid towards amenities will also fall under the definition of Rent. Before the Rent Controller, the

tenant has filed Exs.R.1 to R.11 to show that only a sum of Rs.300 was collected as rent. But the landlord has filed receipts including counters foil

receipts under Exs. P.1 to P. 100 and Exs. P.105 and 106. Ex.B.1 dated 7.7.93 is issued for receipt of Rs.300. The tenant has filed Ex.B.3

receipt dated 7.9.93 for payment of rent of Rs.300. The receipt number is 1512. Ex.A.1 is the receipt produced by the landlord which is the

counter foil receipt. Ex.A.2 will show that on the same date i.e., 7.9.93, receipt is issued for Rs.150. The receipt number of Ex.A.2 is 1513.

Ex.B.5 the receipt bearing serial umber 1586 is for Rs.300. Ex.A.9 is the counter foil receipt of Ex.B.5. Ex.A.10 which is issued on the same date

i.e., 8.1.94 bears the serial number 1587 and above receipt was issued for Rs.150. Exs.B.6 and A.21 are the receipts and counter foil receipts for

Rs.300. Ex.A.22 bears the next serial number 117 and the said receipt is issued for Rs.150. Exs.B.7 and A.25, the receipts bearing serial No.158

dated 6.11.95, relates to rent of Rs.300. Ex.A.26 bearing serial No.159 was issued on the same dated i.e., 6.11.95 for Rs.150. Exs.B.8, A.35

and A.36 are the receipts issued on 11.4.96 separately for Rs.300 and Rs.150. Exs. B.9, A.69 and A.70 are the receipts bearing serial numbers

105 and 106 issued on 9.9.97 for two payments. Exs.B-10 and A-83 the receipts bearing serial number 21 relates to payment of Rs.300 on

4.5.98. Ex.A-84 the receipt bearing serial number 22 was issued for Rs.150 on the same date. Exs.B-11 and A-83 are the receipts for payment

of Rs.300 on 7.1.99. Ex.A-96 is receipt bearing receipt No.166 issued on 7.1.99 for Rs.150. In Exs.B-1 and B-2, the printed receipts, it is stated

that the amount of Rs.300 was paid towards rent and other amenities. Much reliance cannot be placed upon the above recitals, inasmuch as the

evidence adduced by the landlord will show that he was issuing two receipts, one for Rs.300 and another for Rs.150. The Rent Controller has

considered the entire documentary evidence and has come to the conclusion that the total rent payable by the tenant is Rs.450 i.e., Rs.300

towards rent and Rs.150 towards amenities. The above findings of the Rent Controller are also confirmed by the Appellate Authority. As the

above finding on the question of quantum of rent payable by the tenant is based on appreciation of evidence, the said concurrent findings of the

Rent Controller and Appellate Authority cannot be interfered with in the revision.

The next question that has to be decided is whether the revision petitioner/tenant has committed wilful default in payment of rent. It is

contended by the respondent/ landlord that the tenant has not paid rent of Rs.450 from March 1999 and that he has committed wilful default. On

the other hand, it is contended by the revision petitioner/tenant that in the civil suit, he has deposited Rs.1800 towards six months'' rent and that no

notice was issued by the landlord demanding payment of rent and that as there were disputes between the landlord and tenant on the question of

quantum of rent, it cannot be said that the tenant has committed default much less wilful default. It is not in dispute that the tenant has deposited

Rs.1800 in O.S. No. 412 of 99. It is also admitted that the tenant has not deposited the rent at the rate of Rs.450 per mensem. It is significant to

note that the tenant has deposited rent in the civil suit only on 15.9.99. It is, thus, seen that the tenant has not paid rent even at the rate of Rs.300

from March 1999 to August 1999 before filing civil suit. But, it is contended by the tenant that the landlord refused to receive the rent and that he

has demanded the rent at Rs.1000, for which he did not agree and that therefore, he was constrained to file the suit for injunction and that the

landlord did not issue any notice demanding arrears of rent and he should have waited for the period of two months before filing R.C.O.P. None of

the contentions raised by the revision petitioner cannot be sustained. As rightly contended by the learned counsel for the respondent/landlord that

no notice is required to be issued to the tenant before filing R.C.O.P. In support of the same, he relies upon a judgment of the Supreme Court

reported in V. Dhanapal Chettiar Vs. Yesodai Ammal, . The above judgment of the Supreme Court will show that a notice to quit u/s 106 of the

T.P Act is not necessary for eviction petition filed under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act.

Learned counsel for the revision petitioner relies upon the proviso and explanation to Section 10(2) of the Act. The proviso reads thus:-

Provided that in any case falling under claus (i) if the Controller is satisfied that the tenant''s default to pay or tender rent was not wilful, he may,

notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by

him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected"".

The explanation below the above proviso reads thus:-

Explanations- For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the

payment or tender of rent continues after the issue of two months'' notice by the landlord claiming the rent.

The above explanation was added as per amended Act 23 of 73. Learned counsel for the revision petitioner relies upon a judgment of the

Supreme Court reported in C. Chandramohan Vs. Sengottaiyan (Dead) By Lrs. and Others, . In the above decision, it is held thus;-

From a combined reading of clause(i) of sub-section(2), the proviso and the Explanation of Section 10, it is manifest that it is only when the Rent

Controller is satisfied that a tenant''s default to pay or tender the rent is wilful, that he can order eviction of the tenant. The question of wilful default

to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are

illegal, erroneous and perverse, the High Court, having regard to the ambit of its revisional jurisdiction u/s 25 of the Tamil Nadu Rent Control Act,

will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings

In paragraph 13 of the judgment, the Apex Court has held thus:-

Further, admittedly in this case no notice as contemplated by the explanation quoted above was issued by the landlord to the respondents.

The facts of the above case will not apply to this case. On the particular facts of the case, the Apex Court has held that on the date the appellant

filed eviction petition against the tenant, the cause of action on the ground of wilful default in payment of rent was not subsisting. It is no where

stated in the above judgment that the landlord has to give two months'' notice to the tenant before filing the eviction petition. Therefore, I hold that,

the above decision will not assist the case of the revision petitioner in any way.

The Supreme Court had an occasion to consider the applicability of notice contemplated under explanation to Section 10(2) of the Act. In the

decision reported in M/S Chordia Automobiles Vs. S. Moosa and Others, . the Apex Court has held thus:-

The statute has given a benefit to a tenant viz., if there is default in payment of rent and a notice is sent by the landlord of such default, then the

default would mature into a wilful default only if the default continues, in other words the defaulted amount is not paid within a period of two

months from the date of notice

It is seen from the facts of the above case that the landlord issued notice on 9.8.89 and therefore, the period of two months would expire only on

9.10.89. But the landlord did not wait till the expiry of the said period and before the expiry of the said period, he filed eviction petition on

20.9.89. But, in this case, notice was not issued by the landlord and as such the question of filing R.C.O.P. after the expiry of two months'' period

did not and would not arise.

The explanation which is extracted above will only show that the default in payment of rent shall be considered as wilful, if the default is

committed by the tenant even after two months'' notice. Learned counsel for the respdndent/landlord also brought to my notice a direct decision of

this Court on this question. In the decision reported in Majestice Leatherware Vs. Govinda Chetty, . this Court had an occasion to consider the

said aspect of the case. In the above decision, the Court has held thus:-

Under the said Act, only to presume wilful default in payment of rent, explanation to Section 10(2)(i) has been introduced. So, if the submission of

the learned counsel is accepted it amounts to rewriting the provision of me Act. Such a presumption as suggested by the learned counsel cannot be

arrived at, merely because after three years if a tenant deposits or pays the rent on the first hearing date without any valid reason. For example, if a

tenant did not pay any rent inspite of two months'' notice, under Explanation to Section 10(2)(i) of the Act, then the legal presumption is wilful and

the landlord need not further establish the same.

As already stated, it is no where stated in Section 10 of the Act that the landlord should issue notice to the tenant calling upon him to pay arrears of

rent before filing eviction petition. But if the landlord gives notice to the tenant claiming arrears of rent, then he has to wait for two months and in

that event only, the failure to pay rent even after the expiry of two months from the date of notice, will amount to wilful default. If the above course

is adopted by the landlord and if it is proved that the tenant failed to pay rent even after the expiry of two months'' notice, the landlord need not

prove anything to establish that the tenant has committed wilful default. The Court has also held in the above decision that the Court can enter a

finding taking into consideration the conduct of the tenant to consider whether the default is wilful and no notice is required. In view of the above

decision, I am unable to sustain the contention of the revision petitioner that as the landlord failed to issue notice as contemplated in the explanation,

the tenant cannot be said to have committed default in payment of rent. It is contended on behalf of the landlord that the tenant has not tendered or

deposited rent within time and that the mere fact that the tenant has deposited six months'', rent at Rs.300 per mensem in the civil suit, will not

absolve the tenant from the definition of Wilful Default. Admittedly, the tenant has not deposited the arrears of rent in the Court of Rent Controller.

Even admitting but not conceding that the agreed rent is Rs.300 only, the revision petitioner /tenant is not justified in not paying even the said rent

or deposited within time. Even assuming that the landlord refused to receive the rent of Rs.300 per mensem, the legal course open to the tenant is

to issue notice to the landlord requiring the landlord to specify the name of the bank into which the rent could be deposited. If the landlord does not

specify the bank, it is open to the tenant to remit the rent to the landlord by money order. Further, Section 8 of the Act enables the tenant to

deposit the rent before the Rent Controller if the landlord refuses to receive the rent remitted by money order. It is, thus, seen that Section 8 of the

Rent Control Act provides procedure for tendering rent to the landlord. The tenant has not resorted to the above remedy contained in Section 8 of

the Act for depositing the rent. Learned counsel for the landlord also pointed out the consequences which the tenant has to face for non-

compliance of Section 8 of the Act. In this case, the tenant filed suit, in the month of September 1999 and deposited arrears of rent due for the

period from March 1999 to August 1999. If really there is any truth in the case of the tenant that the landlord refused to receive the rent and that

he demanded enhanced rent, the tenant should have issued notice contemplated u/s 8 of the Act to the landlord and deposited the rent before the

Rent Controller. The above conduct of the tenant will only show that the default in payment of even the admitted rent is nothing but wilful.

It is well settled that under the Rent Control Act, the rent is payable as and when it becomes due and it is the obligation on the part of the

tenant to pay rent and that in case the tenant is not paying the amount as per the provisions, he must be deemed to be the defaulter in paying the

rent vide Vasuvaithiar. P v. R.M. Rangoo Chettiar, 2000 (2) L.W 708. The procedure for paying rent or depositing the rent u/s 8 of the Act is also

elaborately discussed by this Court in the judgment reported in Gopalsamy v. Renganathan, 2000 (1) MLJ 703. The question whether the deposit

made by the tenant in the civil suit is a valid tender came up for consideration in the above decision. The learned Judge on consideration of the

judgment of the Apex Court has held that deposit made, which is not in compliance with the statutory provisions, is not a valid tender. Considering

several decisions of the Apex Court and other Courts, the Court has held thus :-

The Honourable Supreme Court held that the deposit made which is not in compliance with the statutory provisions is not valid tender. Tenant,

cannot say that this is a practice which is acquiesced by the landlord. There cannot be a practice in disregarding the law. From the extract of

deposition it is clear that the tenant did not want to tender rent to landlord and it is not their case that they offered rent to landlord and they refused

to accept the same"".

In view of the above decisions of this Court and Apex Court, I have no hesitation in holding that the mere fact that the tenant has deposited arrears

of rent in Civil Court, will not amount to a valid tender. As the tenant has not followed the procedure laid down u/s 8 of the Act and as the tenant

has deposited even the admitted rent only in the month of September 1999, it has to be held that the default in deposit of the above rent is wilful.

The conduct of the tenant in not resorting to the above provision u/s 8 of the Act and rushing to the Civil Court in filing the suit for an injunction and

depositing six months rent at Rs.300 per mensem and that too after six months will lead to an irresistible conclusion that non-payment of rent for six

months by the tenant is nothing but wilful. For the above reasons, I hold that the Rent Controller and Appellate Authority have come to a correct

conclusion in holding that the tenant has committed wilful default. I see no reason to disturb the above concurrent findings of the Courts below.

Learned counsel for the revision petitioner contended that the Rent Controller besides passing order for eviction in the R.C.O.P. also tried

Civil Suit and passed judgment on the same day and that the procedure followed by the Presiding Officer of the Court is not proper. The suit filed

by the tenant in O.S.No.412 of 99 is for an injunction restraining the landlord from disturbing the peaceful possession of the tenant until duly

evicted by due process of law. The above suit was filed on 3.9.99. The R.C.O.P. was filed on 30.9.99. The relief prayed for in the suit has

become infructuous, since the landlord has filed R.C.O.P. for evicting the tenant in accordance with the provisions of Rent Control Act. The Rent

Controller as District Munsif is competent to try both the suit and R.C.O.P. simultaneously and pronounce the judgment on the same day.

Therefore, I do not see any illegality in passing judgment in the suit and order in the R.C.O.P. on the one and same day. Hence, I hold that the

contention of the revision petitioner on this aspect of the case deserves to be rejected. For the reasons stated above, I hold that the concurrent

findings of the Courts below do not merit any Interference. I hold that there are no valid grounds to admit this Civil Revision Petition.

In the result, the civil revision petition is dismissed. No costs. The order passed by the Rent Controller and confirmed by the Appellate

Authority is confirmed. Consequently, C.M.P.No.3907 of 2001 is also dismissed.