P. Kumaresan vs Kalyani

G. Rajasuria, J.—This Civil Revision Petition is focussed to get set aside the judgment and decree dated 09.07.2012 passed in R.C.A. No.

5 of 2011 on the file of the Principal Subordinate Court, Dindigul, confirming the order dated 12.04.2010 passed in R.C.O.P. No. 1 of 2008 on

the file of the District Munsif Court, Nilakottai. The parties are referred to hereunder according to their litigative status before the Rent Controller,

viz., the revision petitioner as tenant and the respondent as landlady.

The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would

run thus:

The landlady filed the R.C.O.P. No. 1 of 2008 for eviction of the tenant under Sections 10(3)(a) and 10(2)(1) of the Tamil Nadu Buildings (Lease

and Rent Control) Act, 1960, on the ground of personal occupation and wilful default in paying the rent. Whereupon the tenant resisted the same.

The landlady filed I.A. No. 2 of 2008 invoking Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, thereon the

learned Rent Controller passed a conditional order for deposit of the rents, but that was not complied with by the tenant. Ultimately, the Rent

Controller ordered eviction, as against which the R.C.A. No. 5 of 2011 was filed by the tenant. Whereas the Rent Control

Appellate Authority dismissed the said R.C.A., confirming the order of the Rent Controller.

Being aggrieved by and dissatisfied with the orders passed by both the fora below, this Civil Revision Petition has been filed by the tenant on

various grounds.

The learned Counsel for the revision petitioner would echo the cri de coeur of the tenant by placing reliance on the grounds of revision that the

Rent Control Appellate Authority without adverting to the fact that pending appeal, a sum of Rs. 24,500/- (Rupees Twenty Four Thousand and

Five Hundred only) was paid by the tenant towards arrears of rent to the Counsel for the landlady, simply ordered eviction; absolutely, there is no

wilful element involved in the non-payment of the rents; the tenant sustained grievous injuries in a road traffic accident and hence, he became

immobilised and there was communication gap between himself and his Advocate, whereupon pending litigation, there was such arrears got

allegedly accumulated, for which the tenant should not be mulcted with the liability of having evicted.

Whereas in a bid to slap down and pulverise the arguments as put forth on the side of the revision petitioner/tenant, the learned Counsel for the

respondent/landlady, would develop his arguments thus:

As on the date of filing of the R.C.O.P., there were arrears of rent for a period of three months. No steps were also taken by the tenant to deposit

the rents promptly pending litigation. The records bespeak that ever since March 2008 till June 2009, the rents were not paid or deposited.

Whereupon, an application was filed invoking Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and in that application,

the Court passed the conditional order, but even that order was not complied with, whereupon the eviction was ordered. Subsequently, the appeal

in R.C.A. No. 5 of 2011 was filed with some delay and after condoning the said delay, the appeal was numbered.

During the pendency of the appeal only, the arrears of rent for a period of 32 months was paid by the tenant to the Counsel for the landlady and

that itself is indicative of the fact that there was wilful default in paying the rents as per the dicta found exemplified in various decisions of this Court

as well as the Honourable Apex Court. The contentions on the side of the tenant that he met with an accident etc., are only forthcoming in the

course of this Civil Revision Petition and that it cannot be taken as an excuse for wilful default involved in the payment of the rents by the tenant in

favour of the landlady.

The point for consideration is as to whether the findings of both the fora below that there was wilful default in paying the rents by the tenant in

favour of the landlady is perverse or not?

The Point:

Indubitably and indisputably, as on the date of filing of the application for eviction during the month of December 2007, there were arrears of

rent for three months. However, no steps were taken by the tenant to voluntarily deposit the arrears at the earliest point of time, for which the

learned Counsel for the tenant would try to explain and expound by pointing out that because of the grievous injuries sustained by the tenant, he

could not move out and do the needful for depositing the rent.

When the learned counsel for the landlady raised a pertinent question as to what made the tenant, even after filing the counter affidavit and

contesting the matter, in not paying the rent ever since March 2008 till June 2009 and thereafter also till the order of eviction was passed by the

Rent Controller during the year 2010, the learned Counsel for the tenant would once again repeat the same explanation that the tenant was

immobilised because of the injury sustained by him. What I could glean and discern from the plea of the tenant is that as per his plea even before

the filing of the R.C.O.P., by the landlady, the tenant met with an accident and because of that alone, there accrued arrears of rent. One important

fact should not be lost sight of. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is a benevolent piece of legislation for the purpose

of protecting the tenant from the oppression of the landlord, but it should not be taken undue advantage of, by the tenant. The tenant failed, in the

facts and circumstances of the case, to realise that he was staying in the house of the landlady and as he bestowed his attention to get treatment for

his injuries, he should have though not to the equal extent at least to some extent shown interest in paying the rent, which he glaringly and wilfully

failed to do so.

I would like to recall the following legal maxims:

(i) ""Verba ita sunt intelligenda ut res magis valeat quam pereat."". [Words are to be so understood that the matter may have effect rather than fail.].

(ii) ""Verba generalia restringunter ad Habilitatem Rei vel Personae."".

[General words are limited to be capability of the subject matter or of the person.].

Any one who goes through the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would be made to realise that a tenant can rightly

resist the application filed by the landlady subject to the condition that he is not in default in paying the rent. The provisions of the Act in no way

enables a tenant despite his non-payment of rent for 20-30 months, to take shelter by contending that he was suffering from ill-health. In this case,

admittedly he filed the counter affidavit and contested the R.C.O.P., and initially he paid the arrears and thereafter, from March 2008 till June

2009, he did not pay the rent at all, for which the reason assigned by him is his immobility and nothing else.

Whereupon the landlady filed an application u/s 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, for striking out the

defence of the tenant. Even after filing such application, immediately, the arrears of rent were not paid. The lower Court passed the order only

during the year 2010, so to say, more than a year after filing of such application u/s 11(4) of the Act. Even thereafter, there was non-compliance

with the order. In such a case, the irresistible conclusion is that there was wilful default on the part of the tenant in paying the rent.

I recollect the legal maxim ""Acta exteriora indicant interiora Secretra."" [Outward acts indicate the thoughts hidden within.].

The conduct admitted by the tenant would connote and denote, portray and display that it amounts to wilful default in paying the rent.

In this connection, I would like to fumigate my mind with the decision of the Honourable Apex Court in E. Palanisamy Vs. Palanisamy (D) by

Lrs. and Others, Certain excerpts from it, would run thus:

It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept

rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the

tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant

to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being

called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after

deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application

before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.

Mr. Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be

taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no

eviction order could have been passed against the appellant on that ground.

According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of

the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of

rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought

not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel.

The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants

through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no

place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the

Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe

the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last

step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by

the decisions of this Court in Kuldeep Singh Vs. Ganpat Lal and another, and M. Bhaskar Vs. J. Venkatarama Naidu, Represented by his Power

of Attorney Holder A. Narayanaswamy Naidu, .

The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making

deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control

of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh Vs. Ganpat Lal and another,

In the present case, the appellant is seeking to avail of the benefit of the legal fiction u/s 19-A(4) of the Act. It is settled law that a legal fiction is

to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See The Bengal Immunity Company

Limited Vs. The State of Bihar and Others, The appellant can avail of the benefit of Section 19 if the deposit of Rs. 3600 made by him in the Court

of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment u/s 19 so

as to enable the appellant to say that he was not in default in payment of rent. u/s 19-A(3)(c) the tenant can deposit the rent in the court only if the

conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present

case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance

with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19 and he must be

held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been

rightly passed against the appellant on account of default in payment of rent for the period of six months.

Again in M. Bhaskar Vs. J. Venkatarama Naidu, Represented by his Power of Attorney Holder A. Narayanaswamy Naidu, with reference to

similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is

evading payment of rent, the tenant has to follow the procedure prescribed u/s 8 of the Act i.e. to issue notice to the landlord to name the bank and

if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow

that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The

landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.

Admittedly the tenant did not follow the procedure prescribed u/s 8. The only submission that was advanced on behalf of the appellant was that

since the deposit of rent had been made, a lenient view ought to be taken.

We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent

cannot justify the action of the tenant in straight away invoking Section 8 of the Act without following the procedure contained in the earlier sub-

sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the

appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of

the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken

possession of the suit premises, in pursuance of the High Court judgment.

(Emphasis added.)

A mere running of the eye over the aforesaid decision would amply make the point clear that any pendente lite arrears also would pave the

way for ordering eviction. A fortiori, the tenant cannot absolve himself from his liability to pay the rent under one pretext or other pending litigation

as according to the precedent of the Honourable Apex Court, equitable considerations have no place. There is no question of treading on the

tender feelings of the Court by portraying and parodying the alleged ill-health of the tenant as the reason for the non-payment of such huge arrears

of rent. The tenant should have taken to cover his own back at least within a reasonable time by complying with the conditional order though he

was not as keen as mustard in meticulously and sedulously complying with Section 8 of the Act. On balance, simply because the first appellate

Court had not recorded about the payment of arrears of rent by the tenant to the Counsel for the landlady, pending R.C.A., that would not in any

way nullify the finding about the wilful default in paying the rent by the tenant.

Further, I would also like to refer to the decision in Vijayakumar Vs. Ravindran Jesudasan and Others, , which is to the effect that the tenant

therein committed wilful default not only prior to eviction petition but also during pendency of eviction petition till appeal was preferred.

The learned Counsel for the landlady made a supine admission that only during the pendency of the appeal, such arrears of rent for 32 months

were paid and in such a case, it is glaringly and pellucidly clear that there was wilful default in paying the rent.

Accordingly, I could see no perversity in the order of eviction passed by both the fora below and the point is decided in favour of the landlady

and as against the tenant.

On balance, this Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs. The learned

Counsel for the revision petitioner/tenant, on hearing the order pronounced, made an extempore submission for granting a year''s time for vacating

the premises by the tenant. Whereupon the learned Counsel for the respondent/landlady would submit that such a huge time as prayed by the

learned Counsel for the revision petitioner/tenant, is unwarranted in the facts and circumstances of this case. However, by way of striking a

balance, I would like to grant nine months'' time for vacating the premises and handing over the peaceful possession by the revision

petitioner/tenant to the respondent/landlady subject to the condition that the revision petitioner/tenant shall pay the rents regularly to the

respondent/landlady every month without any default and to that effect, an affidavit should be filed by him within a period of fifteen days from

today, otherwise, this order granting time upto nine months'' will not enure to his benefit.