Nelson and another vs P. Rangantahan Mudaliar

S.S. Subramani, J.—Tenant in R.C.O.P. No. 23 of 1986, on the file of the Rent Controller, Vellore, is the revision petitioner.

The respondent filed eviction petition against the petitioners on the ground that the petitioner has committed wilful default in paying the rent.

The material averments are as follows :

The agreed rent as per the rent deed executed by the petitioner was Rs. 5,000/- per mensem. But the respondent herein filed R.C.O.P. No. 37 of

1980 before the Rent Control Court, Vellore, for fixation of fair rent. The application was filed on 10-3-1980. On 30-1-1982, the Rent Controller

fixed the fair rent at Rs. 1050/- per mensem. Against the decision, two appeals were filed before the Appellate Authority as C.M.A. Nos. 63 and

64 of 1982. Both the appeals were heard jointly and the Appellate Authority modified the order on 5-1-1985 and fixed the fair rent at Rs. 1,100/-

. Against the decision the tenant filed C.R.P. No. 2437 of 1985, and, as per Ex.8.4 dated 29-7-1985, the operation of the judgments and decreed

in R.C.O.P. No. 37 of 1980 and R.C.A. No. 64 of 1982 were stayed by this Court. The stay order was in force till the revision was finally

disposed of by this Court. The landlord also filed C.R.P. No. 2109 of 1985. This Court fixed the fair rent at Rs. 1,125/- and thus partly allowed

the revision of the landlord and dismissed the revision of the tenant. The order of this Court is dated 11-9-1987. In the meanwhile, i.e., after the

appeal was disposed of by the Appellate Authority on 17-10-1985, the landlord issued a notice demanding payment of rent at the rate of Rs.

1,100/- and also arrears of rent from 10-3-1980 as fixed by the Sub Court. The notice issued by the landlord was admittedly at a time when the

matter was stayed by this Court. The notice was replied by the revision petitioner herein as per reply dated 29-10-1985 where he stated that the

landlord has no right to claim eviction on the ground of wilful default. The rejoinder was sent by the landlord on 16-11-1985 repeating the

averments in the notice. After a few months, the present application is filed wherein eviction is claimed on the ground that the tenant has committed

default in paying the rent. In the eviction petition, the arrears that are claimed are as follows :--

In the revision petition, the revision petitioner contended that in view of the pendency of the civil revision petition and also the stay order of this

Court, the application is not maintainable and is premature. He also contended that u/s 10(1) of the Act, the application is not maintainable and he

cannot be treated as a defaulter, much less a wilful defaulter.

Before the Rent Controller, no oral evidence was adduced, and, on the basis of the admitted facts, the documents were marked, and the matter

was heard. The Rent Controller held that the petitioner is liable to be evicted since he has committed default in paying the rent, and that he has not

explained the reasons for non-payment of rent by adducing sufficient evidence. The said decision was confirmed by the Appellate Authority,

against which the tenant has taken this revision.

The only question that arises for consideration in this case is, whether the revision petitioner is liable to be evicted on the ground that he is wilful

defaulter in paying the rent tor the period mentioned in the eviction petition.

Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 enables the landlord to evict his tenant after having him a

reasonable opportunity in case the tenant has not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of

the time fixed in the agreement of tenancy and in the absence of any such agreement, by the last day of the month following the month for which the

rent was payable. The said provision may not have any application to this case, since the amount mentioned as arrears is not due to the landlord on

the basis of an agreement of tenancy. The amount is claimed on the basis of fixation of fair rent by Court, So, it cannot be said that the tenant is a

defaulter for having not paid the excess amount pursuant to the order of Court. It is not an arrear under S. 10(2) of the Act. The Explanation is

added by virtue of an Amendment to the Act. namely, Act 23 of 1973. The said explanation also will not hold good since its an Explanation to the

Proviso which also contemplates payment of rent based on an agreement. In taking the above view, I am supported by the decision reported in

1987 100 Mad LW 708 (C. Ranganathan v. M. Suri) wherein it is held as follows :--

The Rent Control Act docs not make any provision with regard to the consequences of non-payment of the difference between the fair rent and

the agreed rent where fair rent is fixed at a higher figure than the agreed rent and the only remedy available to the landlord will therefore be to file a

civil suit The act also does not specify any period within which the excess rent becoming due as a result of the fixation of fair rent at a higher figure,

should be paid by the tenant.

As the Rent Control Act stands at present, the landlord is not entitled to ask for eviction of a tenant on the ground of non-payment of the difference

between the fair rent and the agreed rent. His only remedy is to file a suit for recovery of the amount due.

In a case where a certain amount becomes due from the tenant as a result of the fair rent being fixed at a higher figure than the agreed rent, the

failure to pay the difference between the fair rent and the agreed rent will not attract the provisions of S. 10(2)(i) at all. Consequently, the landlord

in the instant case, was not entitled to invoke the provisions of S. 10(2)(i) of the Rent Control Act, and the petition filed by him was, therefore,

clearly not maintainable. Consequently, further the provision in S. 11(4) cannot be attracted in the instant case. The Appellate Authority was,

therefore, right in allowing the appeals filed by the tenant and dismissing the petition for eviction.

Even at the time of the decision, the learned Judge held that the Act requires an Amendment. Even though the judgment was pronounced in 1987,

no Amendment has been incorporated in the Act. The law enunciated by the learned Judge holds good, which I am bound to follow.

The learned counsel for the respondent submitted that, while exercising the power of revision under Sec. 25 of the Tamil Nadu Buildings (Lease

and Rent Control) Act, the concurrent findings should not be interfered with. I am afraid that I cannot accept the said contention. Here, the

question is whether the tenant has committed any wilful default, and whether the default committed is against the terms of any agreement of

tenancy. When we find that the payment of excess rent is not on the basis of any agreement of tenancy, the petitioners cannot be evicted from the

building. The remedy of the respondent is only through Civil Court for getting arrears of rent as declared in the decision cited supra. This is a matter

affecting the jurisdiction of the Rent Controller. In the judgment cited supra, the learned Judge has held that the remedy is only through a Civil

Court. Being a forum bound by a special statute, the jurisdiction of the Rent Control Court in only to order eviction on the specific grounds

mentioned therein. In this case, eviction cannot be ordered for the reasons mentioned in the petition. It is a matter of jurisdiction.

In the result, I set aside the concurrent findings of the authorities below, and allow this revision petition, with no order as to costs.

Revision petition allowed.