N. Subramania Mudaliar vs Esakki Ammal and Another

V. Kanagaraj, J.—This civil revision petition has been filed against the fair and decretal order dated 30.1.1996 made in R.C.A.No. 2 of

1995 by the Rent Control Appellate Authority and the Court of Subordinate Judge, Ambasamudram thereby confirming the fair and decretal order

dated 22.3.1995 made in R.C.O.P.No. 9 of 1993 by the Rent Controller and the Principal District Munsif, Ambasamudram.

Originally, it is the landladies, who filed the petition before the Rent Controller on two specific grounds viz., (i) wilful default in payment of the

rents u/s 10(2)(i) and (ii) for personal use and occupation u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960.

contending that the premises was originally belonging to one Mylerum Perumal and on his death, both the respondents herein continued to be in

possession and ultimately it fell to the share of the second respondent herein in the family partition, that for years together, the revision

petitioner/tenant is in occupation of the property as a tenant on payment of a monthly rent of Rs. 40 which on being enhanced gradually became

Rs. 90 per mensem; that from the Tamil month of Panguni of the year 1166, the tenant stopped payment of the rent wilfully, which has to be

remitted within 10th of every month and entries made into the rental passbook; that in spite having demanded the rent by the respondents herein in

person and through men, the tenant did not pay the arrears of rent, as a result of which, in the name of the first respondent herein, a legal notice has

been sent, but without proper instruction, the lawyer had wrongly averred in his notice that the revision Retitioner/tenant had paid the rent upto

December 1991, taking advantage of which, admitting the same, a reply had been sent by the tenant with false and fictious contentions further

confirming that there was no default in the payment of the lease rent.

The further allegations of the petition before the Rent Controller are that the second respondent''s husband is in dire necessity of the subject

matter for starting vulcanizing business of his own since he does not own any other property within the jurisdiction of the Rent Control Court and

the rental premises is best suited for starting such a business and hence it is required for the personal use and occupation of the respondents.

Hence, on both the above grounds the respondents herein have sought for the eviction of the revision petitioner herein from the subject matter.

On the contrary, the revision petitioner/tenant would file a counter contending that he was originally a tenant under late Mylerum Perumal Pillai

and subsequently it was the first respondent, who was receiving the rents; that it is false to allege that the property fell to the share of the second

respondent herein in the family partition, which has not been spoken about in her notice dated 20.10.1992 and according to the said notice, he

initiated proceedings before the same Rent Controller in R.C.O.P.No. 16 of 1992 u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control)

Act 1960; that it is further false to allege that he was in default of rents from the Tamil Month of Panguni of the year 1166. It is false to allege that

the tenancy is according to the Tamil month.

It is further contended that there was no wilful default in the payment of the rents; that for the notice sent, he issued a suitable reply, but the first

respondent herein was pestering him to pay the enhanced rent; that for January and February 1992, the rents paid by the revision petitioner have

been refused and the mediation done by middle men was of no consequence and hence, ultimately from January to September 1992, he had to

remit the rent by money order; that there was absolutely no default; that in the rental passbook, the first respondent had not properly accounted for

the rents paid; that there was no wilful default of rent nor was there any necessity for the second respondent''s husband to start vulcanizing business

in the premises, which were all meant only for the purpose of evicting the revision petitioner and that the second respondent and her husband were

living at Tirunelveli and would ultimately pray for dismissing the application with costs.

During enquiry before the Rent Controller, the first respondent herein has examined herself as P.W.1 and has marked two documents as Exs.P-

1 and P-2. Ex.P-1 being the memorandum of appeal filed by the revision petitioner/tenant against the first respondent herein before the Rent

Controller Appellate Authority, Ambasamudram in R.C.A.No. l of 1994 and Ex.P-2 being the reply notice issued by the tenant to the first

respondent herein. On the part of the revision petitioner/tenant, he would examine himself as R.W.1 and would mark seven documents as Exs.R-1

to R-7, Ex.R-1 being the legal notice issued by the first respondent herein to the revision petitioner, dated 20.10.1992, Ex.R-2 being the copy of

Ex.P-2 reply notice, dated 27.10.1992, Ex.R-3 being the postal acknowledgment in the name of the first respondent herein dated 30.10.1992,

Ex.R-4 being the postal receipt dated 2.9.1992, Ex.R-5 being the money order coupon, dated 6.10.1992, Ex.R-6 being the postal receipt dated

7.11.1992 and Ex.R-7 being the money order coupon dated 13.11.1992.

The Rent Controller, in consideration of the above facts and circumstances pleaded by parties and in further consideration of the evidence

placed on record, framing three points and appreciating the evidence in his own way, had allowed the rent control application on both the grounds.

Aggrieved, the revision petitioner herein has filed an appeal in R.C.A.No. 2 of 1995 before the Rent Control Appellate Authority and the Court

of Subordinate Judge, Ambasamudram and the said court having gone into the merits of the case and on perusal of the order passed by the Rent

Controller, has accepted the finding of the Rent Controller regarding the first ground of ''default in payment of rents'' u/s 10(2)(i), but has rejected

the plea of the landladies under the other ground of personal use and occupation u/s 10(3)(a)(iii) further granting a time of one month for the tenant

to vacate the premises.

It is only challenging the orders passed by the Rent Controller and the Rent Control Appellate Authority as well, the tenant has come forward to

file the above revision petition on certain grounds as brought forth in the memorandum of civil revision petition.

During arguments, the learned Counsel appearing for the revision petitioner would contend that the revision petitioner has been in occupation of

the premises for the last 20 years, having become the tenant of one Mylerum Perumal Pillai, the husband of the first respondent herein on a rent of

Rs. 40 per month and on enhancement in the due course, the same is Rs. 90 per month; that though the Rent Controller ordered eviction on both

grounds of wilful default in payment of rent and requirement of the building by the owner for personal use and occupation, the Rent Control

Appellate Authority negatived the ground of owner''s use and occupation and allowed the rent control appeal in part, thus concurrently both the

Rent Controller and the Rent Control Appellate Authority ordering eviction on ground of wilful default; that the landladies say that upto December

1991 there was no default and the default is attributed only for nine months i.e., from January. 1992 to September 1992; that according to the

landladies, the rental month is the Tamil month, but in Ex.R-1 eviction notice, it is stated that the lease is according to the English Calendar month;''

that for nine months, by Exs.R-4 to R-7, the rent was sent by money orders, but the landladies refused to receive the same and both the courts

below have not considered these aspects; that before these eviction proceedings, R.C.O.P.No. 62 of 1992 has been filed by the tenant since the

landladies refused to receive the rent remitted by money order and the arrears of rent was sought to be deposited before the Rent Controller in the

said proceedings but the said petition having been dismissed, on appeal, it was allowed and that there is a clear cut distinction between default and

wilful default. At this juncture, the learned Counsel for the revision petitioner would cite a judgment of the Apex court delivered in S. Sundaram

Pillai and Others Vs. `R. Pattabiraman and Others, , for the proposition that the wilful (default) must be intentional, deliberate, calculative and

conscious. After a thorough research done as per paragraph Nos. 21 to 25, the Apex Court in para No. 26 of the above judgment has given the

meaning of the words ''wilful default'' and the same is extracted here-under:

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

The learned Counsel for the revision petitioner would then argue that refusal to receive the arrears of rent by the landlady will not in any manner

indicate wilful default on the part of the tenant and would cite another judgment reported in Sri Rajagopalaswami Sooriya Prabai Mandahapadi

Ahamadiyar Sangam, Mannargudi, by its President B. Mohandoss v. R. Balakrishnan (1988)1 L. W, 557. In this judgment, the case cited

herebefore reported in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , has been followed and it is held in this case that:

Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Section 10(2) - Wilful default - Defence plea that entire arrears of rent was sent

by M.O. to landlord before the filing of the eviction petition but it was refused by the landlord - Held, not a wilful default on the principle of the

decision in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, .

The third judgment cited by the learned Counsel for the revision petitioner is also relating to the deposit of the rent by the tenant or sending by

money order before the date of the filing of the petition. This judgment is one reported in Parasuram Chettiar represented by his Power Agent K.

Bhoopathy v. V. Alwar and another 1996 T.L.N.J. 166, wherein a single Judge of this Court held that,

Transfer of demised property - Tenant not informed of person entitled to collect - Tenant initiates proceedings for deposit before eviction petition -

Default not wilful.

In reply, the learned Counsel appearing for the respondents/land ladies would contend that the concurrent findings of both the courts below

may not normally be interfered with u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960; that it is the tenant''s duty to pay the

monthly rents promptly and to get the receipt. Regarding concurrent findings of the Rent Controller and the Rent Controller Appellate Authority,

the learned Counsel would cite a case reported in R. Perianna Asari and another v. Jayakumar (1997)1 L. W. 727, wherein it is held that under

Tamil Nadu Buildings (Lease and Rent Control) Act 1960, regarding the question of wilful default, the concurrent findings of fact not to be

interfered with, unless they are shown to be perverse.

For the deposit of arrears of rent on the first date of hearing, the learned Counsel for the respondents would cite a case reported in T. Easwara

Rao Vs. N.E. Ansari(decd) and six others, , wherein it is held,

Merely because tenant deposits arrears of rent on first date of hearing, it cannot be said that landlord cannot sustain petition for eviction if it is

otherwise established that tenant committed wilful default in payment of rent Such deposit has to be considered along with other factors to decide

whether default is wilful or not.

Coming to the question of pleadings, contending that pleadings cannot be taken so strictly in rent control matters, as if it is a civil suit, the

learned Counsel for the respondents would cite a case reported in Ruth Margret Gonsalves v. K. T.H. Presses by its Proprietor, Kumar, 100 L.

W. 258, wherein it is held that pleadings in certain matters cannot be construed with the strictness with which pleadings in civil suits are construed.

It is further held therein that,

The case of the landlord or the tenant, as the case may be, has to be read as a whole and on the evidence and the pleadings, there is no doubt in

this case that here was a landlady who had the problem of an unemployed son on her hand and she was making some additional income by making

some small things for the benefit of her acquaintances and selling them.

In support of the contention of the respondents that the premises is required for their personal use and occupation, the learned Counsel for the

respondents would cite a judgment in"" V. Radhakrishnan Vs. S.N. Loganatha Mudaliar, , wherein it is held that,

Landlord filing eviction petition requiring such premises for setting up business for his son - who was carrying on business in shop belonging to

paternal uncle subsequently started doing business along with father in non-residential premises owned by father son not occupying or owning any

non-residential premises of his own - Requirement of landlord (father) is bona fide and tenant can be evicted.

With this, the learned Counsel for the respondents would pray to uphold the contentions of the respondents and dismiss the appeal with costs.

If the whole case as pleaded by parties and brought out in evidence is to be assessed, the petition before the Rent Controller has been filed by

the landladies on the dual grounds of wilful default in payment of rent by the tenant u/s 10(2)(i) and for the requirement of the building for personal

use and occupation by the owner u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Regarding the occupation of

the shop structure i.e., lawfully belonging to the respondents herein by the revision petitioner for the last 25 years, the revision petitioner having

become the tenant under the husband of the first respondent and father of the second respondent herein viz., Mylerum Perumal Pillai for and

agreed monthly rent of Rs. 40 initially, which having come to be enhanced from time to time, at the time of filing of the original petition the same

was Rs. 90 per month, there is absolutely no controversy between the parties. The controversy is only regarding the default in payment of rent,

which is claimed to be wilful by the respondents/landladies but the contention of the revision petitioner/tenant is that the respondents deliberately

avoided to receive the monthly rents to create a ground for eviction. The second ground under which eviction is sought for by the respondents

herein is requirement of the premises for their personal use and occupation. The claim of the landladies on the second ground of owner''s

occupation has been rejected by the appellate authority.

It is the strong case of the landladies that from January 1992, the tenant committed wilful default in payment of the monthly rents at the rate of

Rs. 90 per month and that the premises is required to start vulcanizing business by the husband of the second respondent herein, who is already

doing the same outside. Contra, the case of the revision petitioner/tenant is that, in spite of himself offering the monthly rents from January 1992,

onwards each and every month in person, deliberately the landladies refused to receive the rent in order to show that he was committing wilful

default in payment of rent and to evict him on that ground. Then, he sent the rents by Money orders, but the same were returned on refusal by the

landladies. So far as the second ground of personal use and occupation raised by the landladies, the tenant would allege that landladies own many

other buildings similar to the premises in question and it is absolutely not required for any purpose, much less to start any business by the second

landlady''s husband.

In proof of their case, on the part of the landladies, the first landlady examined herself as P.W.1 and marked two documents as Exs.P-1 and

P-2, Ex.P-1 being the served copy of memorandum of appeal in R.C.A.No. l of 1994 and Ex.P-2 being the reply notice dated 27.10.1992 sent

by the tenant to the notice sent by the first landlady. So far as Ex.P-1 is concerned, it is the copy of memorandum of appeal filed by the revision

petitioner herein against the first respondent herein before the Rent Control Appellate Authority, Ambasamudram, dated 17.1.1994 and I am

unable to understand as to why this document has been filed since the case of the parties to the contest starts from January 1992 and from this I

am not even able to guess when the original R.C.O.P.No. 62 of 1992 would have been exactly filed. But, what comes to be known is that the

tenant has filed the said R.C.O.P. u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 in order to remit the rent. The only

inference that could be drawn from the filing of the said R.C.O.P. is that in the year 1992 itself, the tenant has made a genuine attempt to deposit

the rent in the court. It is relevant to point out that the original petition for eviction of the tenant in the case in hand has been filed in the year 1993.

Ex.P-2 is nothing but the reply notice dated 27.10.1992 sent by the tenant in reply to the notice sent by the first landlady wherein all the allegations

are in the form of denial.

On the part of the tenant, besides examining himself as R.W.1, he would mark seven documents as EXS.R-1 to R-7. Ex.R-1 is the legal notice

dated 20.10.1992 issued by the first landlady to the tenant, Ex.R-2 is nothing but the copy of Ex.P-2, Ex.P-3, is the postal acknowledgement,

Exs.R-4 and R-6 are the money order receipts and Exs.R-5 and R-7 are the returned money'' orders coupons. From all these exhibits, the case

set up by the tenant is that he had not only rebutted the allegations of the landlady levelled in her notice but also had taken appropriate and prompt

steps to send the rent by money order, but the same had been refused by the landlady.

However, the Rent Controller, discussing the whole merit of the case in his own way, has concluded that the tenant is guilty of wilful default in

payment of rent and that the premises is also required for the personal use and occupation of the landladies, thus ultimately, ordering the eviction of

the tenant further giving a time of one month for such eviction. But, on appeal, the Rent Control Appellate Authority, having discussed the merits of

the case in evidence has ultimately concurred with the Rent Controller regarding the wilful default of the payment of rent committed on the part of

the tenant but differed with the finding of the Rent Controller regarding the other ground i.e., requirement of the premises for the use and

occupation of the landlady thus ultimately refusing to interfere with the order of eviction passed by the Rent Controller based on the first ground. It

is only a against the concurrent decision rendered by both the Rent Controller and the Rent Control Appellate Authority ordering the eviction of the

tenant on the first ground offered by the landladies that is on the ground of wilful default in payment of rents by the tenant, the above civil revision

petition has come to be filed by the tenant. Hence, the only point that is to be decided here is, whether the lower courts are right in holding that the

tenant has committed wilful default in payment of monthly rents and whether the eviction ordered by the Rent Controller and the Rent Control

Appellate Authority is proper?

Apart from the facts discussed already, it is relevant at this stage to more rely on the legality of the orders passed by both the authorities below

and decide whether such orders could sustain in the context of law. On the subject, it would be argued on the part of the landladies that the

revisional court may not normally interfere with the concurrent decisions arrived at by both the Rent Controller and the Rent Control Appellate

Authority and would cite the case in R. Periamma Asari and another v. Jayakumar (1997)1 L. W. 727, wherein it is held that under the Tamil

Nadu Buildings (Lease and Rent Control) Act 1960 regarding the question of wilful default, the concurrent findings of the fact are not interferred

with unless they are shown to be perverse.

The trial court, in this case would assess not only the entire period in which the default is alleged to have been committed by the tenant i.e.,

from January 1992 till September 1992, but also would point out that only for a couple of months, the tenant had attempted to sent the rents by

money orders but not for the other months and ultimately at the close of the year, he had again come forward to initiate Section 8(5) proceedings in

order to deposit the arrears of rent and this attitude exhibited on the part of the tenant does not disclose any uniformity in his act in remittance of

the monthly rents and would ultimately conclude that he had committed wilful default in payment of the monthly rents. The Rent Control Appellate

Authority would also in his own appreciation of evidence uphold the contentions of the Rent Controller.

On the part of the tenant, for having not committed wilful default, cases would be cited to show that the terms ''wilful default'' would mean

intentional, deliberate, calculative and conscious and with full knowledge of the legal consequences following therefrom and would argue that the

default committed on the part of the tenant in the case in hand is not the one intentionally or deliberately committed, so as to be branded as wilful

defaulter.

It is true that the tenant in this case is very much cautious and immediately after the refusal of receipt of the rent by the landlady, according to

him, for the month of January 1992, he is careful enough to send the same by money order not only for one month but also for another month, but

thereafter, he does not seem to have bothered about continuing the same or making alternate arrangement. But, in his oral evidence, the tenant

would depose that for the months of January and February 1992, he had remitted rents, which is quite contrary to the facts and of late, since the

R.C.O.P. filed by him for remitting the rents had been dismissed, filing, R.C.A. and getting it allowed, he had started remitting the arrears of rent.

But, these are all not sufficient reasons that could be attributed for the default that he had committed from January to September 1992 and hence

for that period, the wilful default is writ large and to gulf the bridge, no satisfactory or convincing evidence has been brought forth on the part of the

tenant especially to pay the rents for the months March to September 1992, Hence, it has to be concluded that he has committed default wilfully in

payment of the rent, as concluded by both the authorities below.

The Rent Controller and the Rent Control Appellate Authority as well, have fairly discussed the merits of the case and the evidence particularly

and have rightly concluded that the tenant in this case has committed wilful default in payment of rents, even though the Rent Control Appellate

Authority did not agree with the conclusions arrived at by the Rent Controller on the other ground offered by the landladies requiring the premises

for their personal use and occupation also. But, so far as the first ground and the only issue before this Court i.e., wilful default in payment of rent is

concerned, I am able to see no patent error or perversity in approach, so far as the conclusions arrived at by the Rent Controller and the Rent

Control Appellate Authority as well. I do not see any valid or tangible reason to interfere with the well considered and well merited orders passed

by both the Rent Controller and the Rent Control Appellate Authority. Hence, both the orders of the Rent Controller and the Rent Control

Appellate Authority are hereby confirmed.

In result, the above civil revision petition fails and the same is dismissed. The fair and decretal order dated 22.3.1995 made in R.C.O.P.No. 9

of 1993 by the Rent Controller and the Principle District Munsif, Ambasamudram as confirmed by the fair and decretal order dated 30.1.1996

made in R.C.A.No. 2 of 1995 by the Rent Control Appellate Authority and the Court of subordinate Judge, Ambasamudram is hereby confirmed.

The revision petitioner/tenant is hereby, required to vacate the premises within three months from the date of receipt of this order by the Rent

Control and to hand over vacant possession with the respondents/landladies.

However, in the circumstances of the case, there shall be no order to costs.