P. Janakiraman vs N. Umadevi and Others

Thanikkachalam, J.—The landlord is the petitioner herein. The landlord filed R.C.O.P. No. 1530 of 1986 on the file of XIV Judge, Court of

Small Causes, Madras, for eviction against the tenants under Sections 10(2)(i), 10(3)(a)(i) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960, hereinafter referred to as the Act, on the grounds of wilful default in payment of rent, for owner''s occupation and for

acts of waste. According to the landlord, he is the owner of the petition premises. The mother of the present tenants Tmt. Rathinam was the tenant

on a monthly rent of Rs. 220. The landlord filed H.R.C. No. 737 of 1976 u/s 4 of the Act for determining the fair rent. The Rent Controller

determined the fair rent at Rs. 738/- per month. The tenant filed an appeal H.R.A. No. 412 of 1982 as against the order passed in H.R.C. No.

737 of 1976. In the appeal, the Rent Control Appellate Authority determined the fair rent at Rs. 691 per month, payable from the date of filing the

petition. As against the said order, the tenant filed C.R.P. Nos. 3843 and 3844 of 1982. When these revisions were pending in the High Court,

Tmt. Rathinam died. C.M.P. No. 124377 of 1982 and C.M.P. No. 12214 of 1985 were filed to excuse the delay in filing the petition to bring the

legal representatives on record and to bring the legal representatives on record. These petitions were dismissed. The revisions were abated, since

no legal representatives were brought on record. Hence the fair rent fixed by the Rent Control Appellate Authority at Rs. 691 per month stands

confirmed. The landlord filed O.S. No. 5380 of 1985 for collecting the arrears of rent and for possession. The tenant also filed a suit O.S. No.

4729 of 1985 for direction to the landlord not to collect the rent at the rate of Rs. 691 p.m. In the said suit I.A. No. 1155 of 1985 was filed by the

tenant for permission to deposit the rent at the rate of Rs. 220 per month. This application was allowed by the trial Court. Against the said order,

C.R.P. No. 4391 of 1985 was filed. The revision was allowed and the order passed in I.A. No. 1155 of 1985 was set aside. Therefore,

according to the landlord, the tenants committed wilful default in payment of rent at the rate of Rs. 691 p.m., from 1-4-1985 to March, 1986.

Hence the tenant is liable to be evicted u/s 10(2)(i) of the Act.

According to the landlord, he is having a number of people in his family, and therefore the present premises in which he is in occupation is not

sufficient for his convenient enjoyment. Therefore he required the portion under the occupation of the tenants bona fide for the use of his sons. It is

also stated that the tenants committed sets of waste, and thereby rendering themselves liable to be evicted on that ground also.

The tenants filed a counter stating that the tenants are regular in paying the rent at Rs. 220 p.m. They have paid the rent at the abovesaid rate till

the Hon''ble Mr. Justice K. Shanmukham rendered his order. The tenants also filed a petition to deposit the rent at the rate of Rs. 691 p.m., and

the said petition is pending. There was a compromise between the landlord and the tenants and in the said compromise the tenants paid a sum of

Rs. 10,000 on 5-1-1987. Therefore, according to the tenants, there is no wilful default in payment of rent as alleged by the landlord. The tenants

submitted that there is no bona fide on the part of the landlord in requiring the petition premises u/s 10(3)(a)(i) of the Act. Therefore the petition

filed under the abovesaid provision is liable to be dismissed. The tenants further submitted that no acts of waste was committed by the tenants and

therefore the petition for eviction on the ground of acts of waste is liable to be dismissed.

On considering the facts arising in this case, the Rent Controller came to the conclusion that the tenant committed wilful default in payment of

rent for the petition period. Accordingly eviction was ordered. Insofar as the petition for eviction filed on the grounds of acts of waste and owner''s

occupation is concerned, the petition was dismissed.. On appeal, the Rent Control Appellate Authority on appraising the facts, came to the

conclusion that the tenants did not commit wilful default in payment of rent. Accordingly the Rent Control Appellate Authority reversed the order

passed by the Rent Controller u/s 10(2)(i) of the Act. Thus the petition for eviction filed u/s 10(2)(i) of the Act was dismissed. Insofar as the order

passed by the Rent Controller on the grounds of acts of waste and owner''s occupation is concerned, the Rent Control Appellate Authority

confirmed the order passed by the Rent Controller in dismissing the petition filed under Sections 10(3)(a)(i) and 10(2)(iii) of the Act.

Aggrieved, the landlord is in revision before this Court.

The learned counsel appearing for the landlord/petitioner herein submitted that the Rent Controller fixed the fair rent at Rs. 738 p.m. On appeal,

the Rent Control Appellate Authority determined the fair rent at Rs. 691 p.m. The revisions filed by the tenant were abated, since the legal

representatives were not brought on record of the deceased tenant. Therefore the tenants filed petition to excuse the delay in filing the petition to

bring the legal representatives on record and another petition to bring the legal representatives on record. Both these petitions were dismissed by

the High Court. The review application filed by the tenants was also dismissed. The tenants filed as against the order passed by the High Court

Special leave petitions before the Supreme Court. The Supreme Court also dismissed the Special Leave petitions. Therefore, according to the

landlord, the tenants arc liable to pay the fair rent at the rate of Rs. 691 p.m. from 1-4-1985 to March, 1986. C.R.P. Nos. 3843 and 3844 of

1982 were dismissed on 3.5.1985. The landlord is claiming the arrears of rent on the basis of the fair rent fixed by the Rent Control Appellate

Authority from 1-4-1985 to March, 1986, The rent control proceedings would be deemed to be continued up to the order passed in the revisions

by the High Court. Thereafter, it cannot be said that the rent control proceedings is pending. Hence when the fair rent determined was not paid

after the revisions were dismissed by the High Court, the tenants have no justification to withhold the rent. After the revisions were dismissed, the

tenants approached the civil Court and obtained an order against the landlord preventing him from collecting the rent at the rate of fair rent fixed.

The tenants also filed an application for permission to deposit the rent at the agreed rate. But on a revision filed by the landlord, the order passed

by the civil Court was vacated. It is not correct to state that the tenants paid a sum of Rs. 10,000/- on the basis of a compromise. No compromise

was arrived at between the parties. The fact that the tenants approached the Supreme Court by way of SLP would not justify the tenants to say

that the determination of the fair rent is subjudice. Since the landlord is claiming the arrears of rent after order passed by the High Court in the

abovesaid revisions, the decisions rendered by this Court in Ranganathan, C. v. M. Suri, 100 LW 708, and Nelso and Anr. v. P. Ranganathan

Mudaliar 1995 TLNJ 270, are not applicable to the facts arising in this case. The fact that subsequently the tenants paid Rs. 28,061 along with

Ex.R-10 letter, dated 5.1.1987, would not help the tenant to say that there is no wilful default in payment of rent for the petition period. Therefore,

according to the landlord, inasmuch as the rent from 1.4.1985 to March, 1986 was not paid at the rate fixed by the Rent Control Appellate

Authority, the tenants arc liable to be evicted u/s 10(2)(i) of the Act.

On the other hand, the learned counsel appearing for the tenants/respondents herein submitted as under: -

As against the fair rent fixed by the Rent Control Appellate Authority, two revisions were filed by the tenant. When revisions were pending, the

original tenant Rathinam died and petitions to implead the legal representatives were filed. Since those petitions also dismissed, review application

was filed and that was also dismissed. Thereafter the tenants approached the Supreme Court by filing Special Leave Petitions. The Special Leave

petitions were dismissed on 7-8-1986 and the tenants came to know of the result of the Special Leave petitions filed only after some time when it

was informed by their counsel. There was compromise in which the legal representatives of the tenant paid a sum of Rs. 10,000 to the landlord.

Since the matter was pending till the disposal of the Special Leave petitions filed in the Supreme Court, the legal representatives of the tenant were

under the impression that the admitted rate of rent can be paid during that period. By a letter, dated 3.1.1987 marked as Ex.R.10, the tenants have

sent the rent of Rs. 28,061. Therefore the entire arrears were paid on the basis of the fair rent fixed by the Rent Control Appellate Authority. It

was, therefore, submitted that there is no element of wilfulness in not paying the rent in time. Hence the order passed by the Rent Control Appellate

Authority in dismissing the petition filed u/s 10(2)(i) of the Act is in order and no interference is called for.

The petitioner herein is the owner of the petition premises. The respondents herein are the legal representatives of the original tenant Tmt.

Rathinam. Eviction petition was filed under Sections 10(2)(i), 10(2)(iii) and 10(3)(a)(i) of the Act in R.C.O.P. No. 1530 of 1986. Eviction petition

was allowed on the ground of wilful default in payment of rent by the Rent Controller. Petition filed under other two grounds was dismissed by the

Rent Controller. On appeal, the Rent Control Appellate Authority reversed the order of eviction passed by the Rent Controller u/s 10(2)(i) of the

Act, but confirmed the order passed by the Rent Controller under Sections 10(2)(iii) and Section 10(3)(a)(i) of the Act. The landlord filed a fair

rent petition. The admitted rent was Rs. 220 p.m. The Rent Controller fixed the fair rent at Rs. 738/- p.m. On appeal, the Rent Control Appellate

Authority fixed the fair rent at Rs. 691 p.m. Fair rent was fixed in R.G.A. No. 412 of 1982 at Rs. 691 p.m., against the fair rent fixed at Rs. 738

p.m. in R.C.O.P. No. 737 of 1976. Rathinam filed C.R.P. No. 3843 of 1982 against the order of fair rent in R.C.A. No. 412 of 1982. Another

C.R.P. No. 3844 of 1982 was filed against the order in M.P. No. 744 of 1982 in R.C.A. No. 412 of 1982 for adducing additional evidence.

When both these petitions were pending, on 17.10.1984 Rathnam died. The respondents herein filed petitions in C.M.P.S.R. Nos. 124376 and

124377 of 1984 for bringing the legal representatives on record in C.R.P. Nos. 3843 and 3844 of 1982. Since there was delay of 32 days, the

petitions were returned by the office as out of time. C.M.P. Nos. 4653 and 4657 of 1985 were filed to condone the delay in filing the petition to

bring the legal representatives on record on 23-1- 1985. C.M.P.S.R. No. 6058 of 1985 and C.M.P.S R. No. 12214 of 1985 were filed to set

aside the abatement in bringing the legal representatives on record. On 3-5-1985 all the petitions were dismissed by the High Court, on 9.10.1985

review petitions in CM,P. No. 12701 and 12702 of 1985 were also dismissed C.M.P. Nos. 3843 and 3844 of 1982 were dismissed as abated

on 18.10.1985. The respondents filed Special Leave to appeal (Civil) Nos. 501-504 of 1986 before the Supreme Court and they were dismissed

on 7-8-1986. Ex.R-13, dated 22-10-1986 is the letter written by the respondents'' counsel in the Supreme Court intimating that the Special Leave

petitions were dismissed.

In the meanwhile, the landlord issued a notice to the tenants, dated 8-5-1985 under Ex. P-4 calling upon them to quit and deliver vacant

possession and pay the arrears of rent. The tenants sent a reply notice on 28-6-1985, marked as Ex.R-4. The respondents filed O.S. No.4729 of

1985 for permanent injunction restraining the landlord from taking any proceedings against them for recovery of rent at the rate of Rs. 691 per

month. The respondents also filed I.A. No. 11135 of 1985 in the above suit for permission to deposit the rent in Court at the rate of Rs. 220/- per

month. This was allowed on 20-8-1985. The landlord filed O.S. No. 5380 of 1985 on 19-7-1985 to recover the arrears of rent of Rs. 29,506.50

and for damages. I.A. No. 12528 of 1985 was filed for attachment before judgment and it was dismissed. As against the order passed in the said

I.A., C.R.P. No. 4383 of 1985 was filed by the landlord. The landlord also filed C.R.P. No. 4391 of 1985 as against the order of interim deposit

passed in I.A. No. 11135 of 1985. Both these revisions were allowed on 12.2.1986. Thereafter the tenants filed petition u/s 8(5) of the Act to

deposit the rent at the rate of Rs. 220 per month. According to the tenants, after the landlord filed R.CO.P. No. 1530 of 1986, a sum of Rs.

10,000 was paid in terms of a compromise. But the said compromise was not established.

Now the point for consideration is whether the tenants committed wilful default in payment of rent at the rate of Rs. 691/- per month from 1-4-

1985 to March,, 1986. According to the tenants, since after the dismissal of the revisions, they approached the Supreme Court by way of Special

Leave Petitions, they were under the impression that the proceedings were pending and the matter is subjudice. Therefore they can pay the rent

only at the admitted rate of Rs. 220 per month. This view of the tenants is not correct. The rent control proceedings would start from the Rent

Controller and end with the order passed in the revision by the High Court. The Special Leave Petitions were filed not in respect of any order

passed in the revisions, but they were filed only against the order refusing to review the earlier order. Therefore, the Special Leave Petitions cannot

be considered as the continuation of the rent control proceedings. Admittedly the tenants have not paid the rent at the rate of Rs. 691 per month

from 1.4.1985 to March, 1986. Further, the tenants took various steps to prevent the landlord from collecting the rent at the rate of Rs. 691 per

month, even after the revisions were dismissed, by filing suit and obtaining as interim order restraining the landlord from collecting the rent at the

abovesaid rate. Ex. R-10 is the letter dated 5.1.1987 written by the Advocate on behalf of the tenants. In the said letter it is stated that the total

amount of rent calculated at the rate of Rs. 691 per month from the date of order till date is Rs. 49,061. The tenants have paid rent at the rate of

Rs. 220 per month, amounting to Rs. 11,000. On 26.9.1986, the tenants paid a sum of Rs. 10,000 by cheque. The balance amount of rent till

December, 1986 would come to Rs. 28,061. This was paid by cheque on 5.1.1987. Therefore admittedly for the petition period the tenants have

not paid the rent at the rate of Rs. 691 per month, which was determined by the Rent Control Appellate Authority and concluded in the revisions

filed by the tenants. Thereafter the tenants attitude in not paying the monthly rent at Rs. 691 per month would amount to wilful default in payment of

rent as contemplated u/s 10(2)(i) of the Act. The tenants cannot say that after the orders were passed in the revisions, they approached the

Supreme Court by way of Special Leave Petitions and therefore, they were under the impression that the matter is subjudice. Hence they can pay

the rent at the admitted rent and not at the rate determined by the Rent Control Appellate Authority and confirmed in revision. It is well-known that

Special Leave Petitions filed against the order passed in the rent control revision is not in continuation of rent control proceedings. After the order

was passed in the revision by the High Court, the rent control proceedings would come to an end. Thereafter, the tenant has no option but to pay

the fair rent determined in the rent control proceedings. Failure to pay the fair rent fixed by the rent control Court thereafter would amount to wilful

default in payment of rent. The fact that the arrears of rent was paid at a later stage would not help the tenant to say that there is no wilful default in

payment of rent. In view of these factual positions, the Rent Control Appellate Authority was not correct in setting aside the eviction order passed

by the Rent Controller u/s 10(2)(i) of the Act. Accordingly, the order passed by the Rent Control Appellate Authority is set aside and the eviction

order passed by the Rent Controller u/s 10(2)(i) of the Act stands restored.

Another ground urged by the learned counsel appearing for the landlord was that the petition was filed for owner''s occupation u/s 10(3)(a)(i)

of the Act. According to the landlord, he required the petition premises bona fide for the use of his sons. In the petition the landlord states that he

required the petition premises for the use of his sons, but in the oral evidence given by one of his sons, it is stated that the premises is required for

his own use. The landlord is also having a premises of his own in T.Nagar in which he is living along with his family. There is no averment to the

effect that the present portion under the occupation of the landlord is insufficient to accommodate his son. Since the landlord required the petition

premises for the occupation of his sons, he cannot file the eviction petition u/s 10(3)(c) of the Act, even though the landlord is in occupation of a

portion of the petition premises. Since the landlord has not established bona fide in requiring the petition premises u/s 10(3)(a)(i) of the Act, both

the Authorities below concurrently came to the conclusion that eviction cannot be ordered u/s 10(3)(a)(i) of the Act, After hearing the learned

counsel appearing on both sides and on a perusal of the records, I consider that there is no infirmity in the order passed by the Authorities below in

dismissing the petition filed u/s 10(3)(a)(i) of the Act.

Another ground in this revision relates to eviction sought for on the ground of acts of waste. Acts of waste was not proved by any independent

evidence. Therefore, both the Authorities below concurrently come to the conclusion that the landlord failed to establish acts of waste. In the

absence of evidence to show that the tenants committed acts of waste, impairing materially the value and utility of the building, it is not possible to

order eviction on the ground of acts of waste. Since the Authorities below concurrently came to the conclusion that eviction cannot be ordered on

the in dismissing the petition u/s 10(2)(ii) of the Act is in order. Accordingly, I am not inclined to interfere with the same.

In the result, the order of the Rent Control Appellate Authority in dismissing the eviction petition filed u/s 10(2)(i) of the Act is set aside and the

order of eviction passed by the Rent Controller under the abovesaid Section 10(2)(i) of the Act stands restored. Accordingly, this civil revision

petition stands allowed. No costs. Time for vacating the premises Three months from today (28-10-1995), subject to the condition that the tenants

should file an affidavit of undertaking to that effect within four weeks from today (28-10-1955).