R. Jagannatha Chettiar vs Swarnambal

This Judgment has been overruled by : V. Radhakrishnan Vs. S.N. Loganatha Mudaliar, AIR 1998 SC 2696 : (1998) 3 CTC 108 :

(1998) 5 JT 494 : (1998) 4 SCALE 478 : (1998) 6 SCC 431 : (1998) 3 SCR 1029 : (1998) AIRSCW 2743 : (1998) 6 Supreme 293

V. Ratnam, J.—The landlord is the petitioner in these civil revision petitions. The premises bearing door No. 34, Ponnappa Mudali St.,

Madras 7 belongs to him. One Duraikannu, the husband of the respondent in these civil revision petitions, was originally a tenant in occupation of

the premises and after his death, the respondent became a tenant on a monthly rental of Rs. 47.50, the tenancy being according to the English

calendar month from the 1st to the end of every month. The landlord has a daughter and she is living in a rented premises in Mannadi with her

husband. Stating that she had been asked to vacate the premises in her occupation in a month''s time and claiming that the landlord or his daughter

does not occupy any other building of their own and that the landlord bona fide required the premises in the occupation of the tenant for his

daughter''s occupation, the landlord filed H.R.C. No. 3042 of 1980 before the Rent Controller (XIV Judge, Court of Small Causes), Madras u/s

10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, as amended by Tamil Nadu Act XXIII of 1973 (hereinafter

referred to as the ''Act'').

The tenant, while accepting the tenancy disputed the bona fide requirement of the landlord for occupation by his daughter and further put

forward the plea that the landlord was not living in a rented premises, but in his own house at Arasappa Mudali St., Madras 7, and that would

disentitle him from maintaining the application for eviction.

The landlord also filed H.R.C. No. 3040 of 1980 before the Rent Controller (XIV Judge, Court of Sma|l Causes), Madras, u/s 10(2)(i) of the

Act praying for an order of eviction against the tenant on the ground that she was irregular in the payment of rents and was in arrears from 1st

August, 1979 till 30th June, 1980 at the rate of Rs. 47-50 and that such non-payment amounted to wilful default in payment of rents.

In the counter filed in that application, the tenant, while admitting the tenancy, stated that the rents had been regularly paid and that therefore no

arrears of rent. The wilful default attributed to her was also denied. In addition, the tenant also stated that certain repairs to the premises had been

effected by her at her expense and a portion of the rents had been spent towards that. The further case of the tenant was that property tax dues to

the Corporation of Madras payable by the landlord remained unpaid in respect of which a distrait notice was issued, that the tenant was

constrained to remit the taxes from the second half year of 1975-76 to the second half year of 1978-79 and that having regard to the payment of

the property tax, there was no question of any default in the payment of rents, much less wilful default.

Since the premises in respect of which an order of eviction was sought was the same and the parties were the same, though the grounds on

which an order of eviction was sought were different, H.R.C. No. 3040 and 3042 of 1980, were tried together. On behalf of the landlord, Exs.P1

to P8 were marked and the landlord was examined as P.W. 1, while, on behalf of the tenant, Exs.R1 to R12 were relied upon and the tenant and

her son were examined as R.W. 1 and 2. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller was of

the view that the tenant had committed wilful default in the payment of rents and that the requirement of the landlord u/s 10(3)(a)(i) of the Act on

behalf of his daughter was not bona fide. In this view, in H.R.C. No. 3040 of 1980, an order for eviction was passed, while H.R.C. No. 3042 of

1980 was dismissed. Aggrieved by the dismissal of H.R.C. No. 3042 of 1980, the landlord preferred an appeal in H.R.A. No. 1117 of 1981

while the tenant, aggrieved by the order of eviction passed in H.R.C. No. 3040 of 1980 preferred an appeal in H.R.A. No. 1020 of 1981 before

the Appellate Authority (III Judge, Court of Small Causes), Madras. The Appellate Authority disposed of the appeals by a common judgment.

Dealing with H.R.A. No. 1117 of 1981, the Appellate Authority took the view that though it may be that the son-in-law of the landlord was a

tenant in another premises, yet, the non-examination of the daughter for whose use the premises was stated to be required by the landlord would

be fatal to the claim of bona fide requirement on her behalf . Considering the question of wilful default, the Appellate Authority found that owing to

the failure of the landlord to pay the taxes to the Corporation of Madras and Tamil Nadu Water Supply and Drainage Board, the tenant was

obliged to pay those taxes and, therefore, the conclusion of the Rent Controller that the tenant had committed wilful default in the payment of rents

could not be sustained. On these conclusions, H.R.A. No. 1117 of 1981 was dismissed, while H.R.A. No. 1020 of 1981 was allowed, with the

result that the application for eviction filed by the landlord in H.R.C. No. 3040 of 1980 stood dismissed. It is against this order that the landlord

has preferred the above civil revision petitions.

It will be convenient first to deal with C.R.P. No. 3941 of 1982, arising out of H.R.C. No. 3042 of 1980, filed by the landlord u/s 10(3)(a)(i) of

the Act. The daughter of the landlord is married to one Thirugnanam. Ex.P5 series are the rent receipts issued in favour of Thiruqnanam the son-in-

law of the petitioner. Those receipts show that Thirugnanam, was a tenant of the premises bearing door No. 51, S.P. Koil Street, Madras-1 in

1976. Subsequently, he would appear to have moved on to premises bearing door No. 117, S.P. Koil St., Madras 1, as shown by Ex.P5 series.

The landlord examined as P.W. 1, would no doubt say that his daughter is living in a rented house and that he would like to secure the premises in

the occupation of the tenant for her use. The landlord has stated in the application for eviction that his daughter has been threatened with eviction in

a month''s time. No material has been placed before the authorities below to establish this. Apart from this, the best person to speak to the

requirements for her own use would be the daughter of the landlord and she has not been examined. Above all, there is a fundamental and

formidable objection to the maintainability of the application for eviction filed u/s 10(3)(a)(i) of the Act. Under that section, the landlord can apply

to the Rent Controller for an order directing the tenant to put the landlord in possession of the residential building, if the landlord requires it for his

own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of

his own in the city, town or village concerned. The daughter of the landlord, though married, would undoubtedly be a member of his family and the

building in question is a residential one. The daughter of the landlord is not occupying a residential building of her own in the city of Madras.

Therefore, one part of Section 10(3)(a)(i) of the Act is satisfied. But the other part of the section is that the landlord or any member of his family

should not be occupying a residential building of his own in the city, town or village concerned. In this case, the landlord examined as P.W. 1,

admitted that he resides in door No. 13, Arasappa Mudali St., Madras 7, and that it belongs to him by virtue of a partition. He would also admit

that his wife, another daughter and himself reside there. From the aforesaid evidence of P.W. 1 it is obvious that the landlord is in occupation of a

residential building of his own in the city of Madras. Thus, the latter part of Section 10(3)(a)(i) of the Act is admittedly not satisfied in this case by

the landlord as even on his own showing, the landlord is in occupation of a residential building of his own in the city of Madras. If the landlord is

desirious of living with his married daughter and son-in-law, then he can do so in his own premises at door No. 13, Arasappa Mudali St., Madras

The circumstance that the accommodation available in that premises may not be adequate or sufficient is certainly not a ground under the Act to

direct the eviction of the tenant in occupation in the absence of the fulfilment of the requirements of Section 10(3)(a)(i) of the Act.

However, the learned Counsel for the landlord relied upon Sivaprakasam and Ors. v. KM. Sheriff (1974) T.L.N.J. 195 and J.N. Gulamali and

Others Vs. Howrah Casting Company and Another, , in support of his contention that the landlord is entitled to take advantage of Section 10(3)(a)

(i) of the Act. The first decision relied on by the learned Counsel for the landlord dealt with the question whether co-owners as an entity could

initiate an action for eviction either for the benefit of all of them or one amongst them. That decision did not lay down that even if the landlord was

in occupation of a residential building of his own in the city, yet, he could recover another residential building on the ground that he required it for

the occupation of a member of his family. The other decision relied on by the learned Counsel for the landlord does not also assist him, for, in that

case, Section 10(3)(a)(i) of the Act relating to non-residential building was held to apply in respect of two different businesses one of which was

carried on in a portion of the building owned by the landlord and the other was carried on in a different tenanted premises. Such is not the situation

in this case and the interpretation put upon Section 10(3)(a)(iii) of the Act, particularly on the words for purposes of a business'' would not be

applicable to Section 10(3)(a)(i) of the Act, where occupation by the landlord of a residential building of his own is sufficient to disqualify him from

claiming another residential building in the occupation of a tenant. On this ground alone, the dismissal of H.R.C. No. 3042 of 1980 and the

confirmation there of in H.R.A. No. 1117 of 1981 have to be upheld.

The learned Counsel for the landlord next contended that the tenant had withheld the payment of rents for the period of 11 months from 1st

August, 1979 to 30th June, 1980 and that such non-payment amounted to wilful default in the payment of rents meriting the passing of an order for

eviction against the tenant. Attention in this connection was also drawn to the circumstance that the tenant had not brought to the notice of the

landlord the service of a notice under R. 29 of Schedule IV to the Madras City Municipal Corporation Act and that if the landlord had been

informed, then the taxes would have been paid by him and therefore, the tenant cannot take advantage of the so-called payment of the property tax

and water charges to escape from the consequences of a wilful default in the payment of rents. On the other hand, the learned Counsel for the

tenant contended that the landlord was never in the habit of making payments towards property tax or water charges and that the tenant, as an

occupier, was obliged to meet those demands on behalf of the landlord and therefore, any payment made by the tenant in that regard was liable to

be recovered from the owner and could also be deducted from the rent in accordance with Section 375 of the Madras City Municipal Corporation

Act. Reliance in this connection was placed by the learned Counsel for the tenant on the decisions in Rupeswari Debi Vs. Lokenath Hosiery Mills,

'' Basant Lal Katyal Vs. Boora Ram Kapoor and Others, , and /V.S. Ramamoorthi v. N.S. Laxmana Achary (1974) 2 M.L.J. 3.

It is seen from Exs. R6 and R1, series, that the tenant had paid the rent regularly in 1978 and upto July, 1979. This is also borne out by Ex.P6

receipt book produced by the landlord where the last receipt issued was towards the payment of rent for July, 1979 on 12th August, 1979. From

August, 1979 onwards, it is common ground that no rents were paid by the tenant. While the landlord would characterise such non-payment as

wilful default, falling u/s 10(2)(i) of the Act, the tenant would justify such non-payment on the ground that amounts had been expended by her for

carrying out repairs, payment of property tax, water tax, etc. With reference to carrying out of repairs by the tenant in connection with which the

tenant claims to have spent certain amounts, there is absolutely no acceptable material at all. The rent for the month of August, 1979, should have

been paid by the tenant on or before 30th September, 1979. Admittedly, the rent was not paid. There is no explanation at all for such non-

payment. The tenant had known her obligation to pay the rent every month to the landlord in a sum of Rs. 47-50 p. and as pointed out earlier, the

tenant had been very regular in the payment of such rents in 1978 and upto July, 1979. There is no reason at all as to why the tenant did not pay

the rent for the month of August, 1979.

The tenant would justify the non-payment of rents for the entire period from 1st August, 1979, to 30th June, 1980, on the ground that under

Ex.R2, dated 12th October, 1979, a notice under R. 29 of Schedule IV to the Madras City Municipal Corporation Act had been issued and that

led to the payment of the property tax by the tenant towards the arrears of such tax payable by the landlord and, therefore, there was no need to

pay the rents to the landlord for that period. Ex.R2 bears the date 12th October, 1979. That notice could have been served on the tenant only on

the day or a few days later. Even by the time Ex.R2 was served on the tenant the payment of rent for the month of August, 1979, had become

overdue and as pointed out earlier, there was no justification at all for the non-payment of the rent for the month of August, 1979. The rent for

September, 1979 should have been paid by the tenant before the end of October, 1979, and likewise for the subsequent months. Whether Ex. R2

would be any justification at all for the non-payment of the rents for the period in question may now be adverted to.

Ex.R2 purports to be the notice issued by the Corporation of Madras in respect of arrears of property tax payable by the landlord from the

second half year of 1973-74 to the first half year of 1976-77. Ex.R3 series are the receipts relied upon by the tenant to show that pursuant to

Ex.R2, she had paid all the arrears of tax payable by the landlord. The receipts do not support this case of the tenant, in Ex.R3, series, the first

receipt is dated 15th October, 1979. That purports to be for the second half year of 1975-76. There is no indication therein that the payment was

made by the tenant. The second receipt is dated 6th December, 1979, and that purports to be a receipt for payment made by the tenant for the

first half year of 1976-77. The third receipt is dated 6th February, 1980, for the second half year of 1976-77. The next two receipts are dated 9th

April, 1980, and 16th April, 1980, in respect of the first and the second half year of 1977-78 and the payment purports to have been made by

Loganathan, son of the tenant. The sixth receipt is dated 7th June, 1980, for first half year 1978-79 and that also is in the name of Loganathan. The

last receipt in Ex.R3, series is dated 14th August, 1980, in respect of the second half year of 1978-79. That receipt also shows that the payment

was made by Loganathan R.W. 2. Ex.R5, shows that an ordinary property tax demand for the second half year of 1980-81 had been issued to the

tenant and a payment of Rs. 60-80p had been made on 6th January, 1981. It is thus seen that excepting for the second half year of 1975-76 and

the first half year of 1976-77, none of the payments relate to the period mentioned in Ex.R2. If the tenant had not made those payments, then it is

obvious that the landlord alone should have paid the arrears of tax and it is his liability to the Corporation of Madras. The evidence also does not

disclose that on any prior occasion, the landlord had directed the tenant to pay the property tax or other charges payable by him on the

understanding that such payments, if made by the tenant, can be adjusted against the rents payable by her to the landlord. The Appellate Authority

was of the view that even before the receipt of Ex.R2, the tenant was called upon orally by the tax collector to pay the arrears of tax due by the

landlord. There is absolutely no evidence whatever that prior to the receipt of Ex.R2, the tenant was called upon to make the payments towards

tax due by the landlord. In the absence, therefore, of any evidence that previously the landlord used to direct the tenant to pay the arrears of tax on

the understanding that such payments could be adjusted from out of the rents payable by her to the landlord, and in the absence of any demand

prior to Ex.R2, it is obvious that it was the duty of the tenant, on receipt of Ex.R2 to have contacted the landlord and appraised him about the

receipt of the notice under Ex.R2. Indeed, the tenant should have sought the permission of the landlord to make the payments on his behalf, as the

evidence does not disclose any prior practice in that regard. Without doing so, the tenant claims that she had made the payments, without even

informing the landlord. The son of the tenant examined as R.W. 2 stated in his evidence that whenever a demand for tax is received, he used to

show it to the landlord and that the landlord used to direct him to pay the tax and deduct the amount so paid towards rent. Not one such demand

has been produced. R.W. 2 would also say that he showed Ex.R2 when it was received from the Corporation of Madras and that the landlord

directed him to pay the arrears and deduct it from out of the rents payable by the tenant. If really the arrangement spoken to by R.W. 2 was true,

then the receipts for the payment of property tax for the second half year of 1973-74, first and the second half year of 1974-75 and the first half

year of 1975-76 should have been made available. But those receipts are not forthcoming and that would ultimately establish that the so-called

arrangement by which the tenant was directed to pay the arrears of taxes as mentioned in Ex.R2, subject to the adjustment of such payment

towards rent payable, is not true. Ex.R5 is the demand notice for the second half year of 1980- 81 and it is an ordinary notice of demand and has

not been issued under R. 29 of Schedule IV to the Madras City Municipal Corporation Act. On receipt of such a notice, in the absence of any

arrangement regarding the payment of such taxes the tenant ought to have forwarded that to the landlord for payment. That was not so done. Even

with reference to the payment of water charges, there was no distrait notice as such, as it is seen from Ex.R4 that it related to the first half year of

1980-81, while the receipts forming part of Ex. R4 show that the payment had been made for the first and the second half year of 1979-80.

Similarly, Ex. RIO shows that a demand was issued for the second half year of 1980-81 for Rs. 22, but there is no receipt to show any payment.

Whatever applies to the demands made in respect of property tax would be equally applicable with reference to the demand for water charges

also, as the evidence does not disclose that there was any prior arrangement come to between the parties regarding the payment of taxes by the

tenant and the adjustment thereof from out of the rents payable by the tenant to the landlord. In the ordinary course of events, even if a demand

notice for property tax or water tax had been received by the tenant it was the duty of the tenant to have brought it to the notice of the landlord and

only thereafter the tenant should have acted in accordance with the directions given by the landlord or as a prudent occupier of the property, if she

was driven to adopt that course. In this case, the evidence does not disclose that the tenant informed the landlord about the receipt of the demand

notices and that there was a direction by the landlord that the tenant should pay the property and water taxes and adjust the same out of the rents.

In the absence of any such direction or understanding, any payments made by the tenant would only be in the nature of a voluntary payment and

would not in any manner bind the landlord nor would it give rise to any right in the tenant for an adjustment of those amounts against the rents

payable. Considered in that light, the property and the water taxes claimed to have been paid by the tenant in this case would partake the character

of only voluntary payments. It may be that the tenant can recover those amounts in accordance with Section 375 of the Madras City Municipal

Corporation Act or by other modes, but that would not shield her from the consequences of non-payment of rents for nearly a period of 11

months without any justification at all. Inasmuch as on the facts and in the circumstances of this case, the payments stated to have been made by

the tenant have been held to be voluntary, those payments cannot be taken advantage of by the tenant and cannot be pleaded as an answer to the

prayer for an order of eviction on the ground of wilful default.

The decision in Basant Lal Katyal Vs. Boora Ram Kapoor and Others, relied on by the learned Counsel for the tenant arose under the

provisions of the Transfer of Property Act, and cannot have any application to a tenancy governed by the provisions under the Act. Similarly, the

decision in Rupeswari Debi Vs. Lokenath Hosiery Mills, would also be inapplicable as in that case it was held that there was an agreement that the

landlord should pay the owner''s as occupier''s were compelled to pay the municipal taxes on behalf of the plaintiff, in which case such payment

should be regarded as payment of rent. It was also further pointed out that if the payment was a voluntary payment, the position would be different.

Earlier, on the facts and in the circumstances of this case, it has been found that the payments stated to have been made by the tenant were only

voluntary payments and not compelled or forced payments in the sense that the tenant had no other option except to pay the arrears of property

and water taxes payable by the landlord. The reliance upon the decision in N.S. Ramamoorthy v. N.S. Laxmana Achary (1974) 2 M.L.J. 7 also

does not assist the tenant. In that case, while recognising that the incurring of expenditure by the tenant for providing amenities and by payment of

taxes would be an imprudent expenditure on the part of the tenant, ultimately the Court took the view that technically unauthorised expenditure by

tenants ought not to be encouraged, but that in that case, the expenditure was incurred for an amenity which was not provided by the landlord and

which amenity was necessary for day today living and, therefore, though the expenditure was an unauthorised one, the non-payment of the rent by

the tenant could not be held to be as a result of supine indifference or conscious avoidance. The principle laid down in that decision is that an

unauthorised expenditure by the tenant ought not to be encouraged. But since the expenditure in that case was incurred for provision of an amenity,

that would mitigate the rigour of wilful nature of the default committed by the non-payment of the rents. The circumstances in this case are very

different and that decision cannot, therefore, be pressed into service by the tenant. Thus on a careful consideration of all the facts and

circumstances and the evidence, it is clearly established that the tenant, who knew very well her obligations to pay the rents at the rate of Rs. 47-

50 p., every month to the landlord and who had also been regularly paying such rents every month, did not pay the rents for the period in question

as and when such rents fell due, but had made certain voluntary payments towards property and water taxes and had claimed to deduct those

payments out of the rents payable by her. Such a claim was not at all in order and, therefore, the non-payment of the rents for the period in

question was only as a result of conscious avoidance amounting to supine indifference and that would justify the passing of an order for eviction

against the tenant u/s 10(2)(i) of the Act. Consequently C.R.P. No. 3941 of 1982 is dismissed, while C.R.P . No. 3992 of 1982 is allowed. There

will be no order as to costs in both the civil revision petitions.