R. Manoharan vs Chandralekha and V. Prema

Honourable Mr. Justice G. Rajasuria

C.R.P. (NPD) (MD) No. 946 of 2005 has been filed to get set aside the judgment and decree dated 25.07.2005 made in R.C.A. No. 13 of 1996 on the file of the Rent Control Appellate Authority, Sub Court, Periyakulam, confirming the judgment and decree dated 27.11.1995 made in R.C.O.P. No. 8 of 1995 on the file of the Rent Controller, District Munsif Court, Periyakulam. C.R.P. (NPD) (MD) No. 947 of 2005 has been filed to get set aside the judgment and decree dated 25.07.2005 made in R.C.A. No. 11 of 1996 on the file of the Rent Control Appellate Authority, Sub Court, Periyakulam, confirming the judgment and decree dated 27.11.1995 made in R.C.O.P. No. 5 of 1995 on the file of the Rent Controller, District Munsif Court, Periyakulam. 3. Heard both sides.

The parties are referred to hereunder as the landlords and the tenant.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of both the Civil Revision Petitions would run thus:

(i) The landlords preferred R.C.O.P. No. 8 of 1995 seeking eviction on the grounds of willful default of the tenant in paying the rent and also for personal occupation of the landlords. The tenant resisted the petition on various grounds. However, the tenant, even before the landlords filing R.C.O.P. No. 8 of 1995, filed R.C.O.P. No. 5 of 1995 invoking Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, for deposit of rent and it was resisted by the landlords.

(ii) Up went the joint trial in both the R.C.O.Ps., and ultimately, the Rent Controller dismissed R.C.O.P. No. 5 of 1995 filed by the tenant and allowed R.C.O.P. No. 8 of 1995 partly by ordering eviction on the ground of willful default in paying the rent by the tenant in favour of the landlords and dismissed the remaining part of the R.C.O.P. No. 8 of 1995 which was based on owners'' occupation.

Being aggrieved by and dissatisfied with the order of eviction passed by the Rent Controller and also the order of dismissal of R.C.O.P. No. 5 of 1995, the tenant preferred two appeals in R.C.A. Nos. 11 and 13 of 1996, for nothing but to be dismissed by the Rent Control Appellate Authority, confirming the common order passed by the Rent Controller.

Challenging and impugning the common order passed by the Rent Control Appellate Authority, both the Civil Revision Petitions have been focussed as above.

The learned Counsel for the tenant would pyramid his arguments, challenging and impugning the common order by placing reliance on the records as well as the grounds of revisions, which could be succinctly and briefly be set out thus:

The demised premise is a shop premise and the tenant has been in possession and enjoyment of the same on a monthly rent of Rs. 150/- (Rupees One Hundred and Fifty only) and the advance amount of Rs. 3,500/- (Rupees Three Thousand and Five Hundred only) was paid by the tenant to the landlords. The tenant was not at all in default of paying the rents. It so happened that when the tenant approached the landlords for payment of rents, they, in fact, asked him to keep the rent with him, so that, if lumpsum arrears of rent are paid to the landlords, then they could utilise the same for paying the house tax relating to the demised premises. Believing the same, for some period, the tenant was keeping the rents with him hoping that he would receive the demand for arrears of rent from the landlords. Like a bolt from the blue, the landlords'' lawyer''s notice dated 23.03.1995 came and it was served on the tenant. Whereupon the tenant suitably replied by his reply notice dated 29.03.1995 and he also simultaneously sent the arrears of rent by Money Order, which was refused by the landlords. Thereupon, the tenant having no other go, filed R.C.O.P. No. 5 of 1995 seeking permission of the Court to deposit the rent in Court and in fact, the rents were paid upto the month of October'' 2002 in Court. As such, absolutely there was no willful default at all in paying the rent, but both the Courts below committed error in deciding otherwise as against the tenant. The Courts below were not justified in simply dismissing the prayer of the tenant in seeking permission to deposit the arrears by filing R.C.O.P. No. 5 of 1995. The above narration of facts would exemplify and demonstrate that there was not even a bit of willful element on the part of the tenant in paying the rent to the landlords. Accordingly, the learned Counsel for the tenant would pray for setting aside the common order of both the Courts below.

Per contra, the learned Counsel for the landlords would advance his argument, the pith and marrow of it, would run thus:

No advance amount was paid by the tenant to the landlords. No assurance or request was made by the landlords that the tenant had to keep the arrears of rent with him and it is only an imaginary plea dished out as a defence for camouflaging and concealing the willful default committed by the tenant in paying the rent to the landlords. As such, as on the date of filing of R.C.O.P. No. 8 of 1995, there was huge arrears of rent as found set out in the petition. The Money Order was, no doubt, refused by the landlords because the tenant did not adhere to the procedures strictly contemplated u/s 8(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Both the Courts below taking into account the pro et contra and also the conduct of the tenant in not paying regularly the rent during the pendency of the proceedings, rejected the plea of the tenant, warranting no interference in revision. The fact that on 05.12.2005 after filing the R.C.O.Ps., the tenant deposited in one lumpsum an amount of Rs. 5,500/- (Rupees Five Thousand and Five Hundred only) representing almost 37 months'' rent in Court, would unambiguously and unequivocally establish and demonstrate that there was willful default in paying the rent by the tenant. Accordingly, he would pray for the dismissal of both the Civil Revision Petitions.

The points for consideration are:

(i) Whether the findings of both the Courts below that there was willful default in paying the rent by the tenant is tenable?

(ii) Whether there is any perversity or illegality in the common order passed by both the Courts below?

Point Nos. (i) and (ii)

At the outset itself, 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-A(4) 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-A(3)(c) 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-A 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 willful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of willful 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(5) 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.

A mere running of the eye over the aforesaid precedent would unambiguously and unequivocally highlight and spotlight the fact that the tenant is expected to pay the rent to the landlord without any demur or default and the tenant will not be heard to contend that since the landlords refused to receive the rent, he was justified in not paying the rent. Over and above that, it is the duty of the tenant, on seeing that the landlords are not receiving the rent, should voluntarily call up the landlords to specify the number of the account in the bank to deposit the rents and if there is no response from the landlords, then the next step is to send it by Money Order depressed by Money Order charges and if the Money Order also is refused, then the tenant is expected to approach the Rent Controller for depositing the rent.

The Honourable Apex Court in the decision cited supra would very clearly and unambiguously disambiguate the ambiguity if any in the procedures to be adopted and it is the duty of the tenant to follow strictly the aforesaid procedures. Even the serial order of the three modes of paying the rent should not be changed. In other words, strict adherence to the procedure contemplated u/s 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, was reiterated by the Honourable Apex Court and the aforesaid precedent would also indicate that pending litigation also, the tenant should be prompt in paying the rent. The very fact that there was lumpsum payment of rent ex facie and prima facie in the absence of any plausible explanation would lead to the inference that there was willful default on the part of the tenant in paying the rent. As such, keeping the aforesaid well established principles of law governing the concept of willful default in paying the rent, I would like to analyse the evidence on record.

The findings of both the Courts below would demonstrate that the advance amount was not Rs. 3,000/- (Rupees Three Thousand only) or Rs. 3,500/- (Rupees Three Thousand and Five Hundred only) as alleged by the tenant. In fact, there is no finding that any advance amount is available with the landlords at all. Indubitably and indisputably, the landlords sent notice dated 23.03.1995 demanding eight months'' rent. Whereupon admitting the quantum of eight months'' rent as arrears, the tenant sent it by Money Order and he also sent his reply explaining and expounding the reason for accrual of arrears. I have to point out in view of the aforesaid precedents that the tenant was not justified in keeping eight months'' rent with him. There is no knowing of the fact as to why the tenant should keep with him the eight months'' rent.

To the risk of repetition and pleonasm, without being tautologous, I would like to point up and show up that after waiting for a month or two, he should have called upon the landlords to specify the number of the account in the bank, in which he could deposit the rent, but that was not done so and only on receipt of notice, he sent such Money Order. However, the landlords refused to receive it. As such, I am of the considered view that even prior to such issuance of notice by the landlords, the tenant committed willful default in paying the rent. Over and above that, one fact glaringly available on record is that on 05.12.2005, a lumpsum of Rs. 5,500/- (Rupees Five Thousand and Five Hundred only) was paid representing 37 months'' rent in Court and that too, after filing of the present Civil Revision Petitions.

The learned Counsel for the tenant would try to justify such lumpsum deposit/payment on the ground that pending R.C.As., one of the landlords died, whereupon the R.C.As., got abated and subsequently, they were restored to file and thereafter, the common order was passed, as against which the present Civil Revision Petitions were filed and at that time alone, this lumpsum payment was made.

In my considered opinion, the explanation on the side of the tenant fails to carry conviction with this Court and it is not in stricto sensu or in consonance with or in concinnity with the aforesaid precedents available in this regard. Among the aforesaid decisions, the decision of this Court in Hemalatha Dolia v. Rajammal reported in 2011 3 TLNJ 105 (Civil), would clearly exemplify and demonstrate that even during the pendency of the R.C.O.P., the tenant should be prompt in paying the rent. However, in this case, for 37 months, for no good reason, the rent was not deposited in Court.

Hence, I am of the considered view that the tenant cannot seek indulgence of this Court and the order of eviction passed by both the Courts below warrants no interference. So far as the dismissal of R.C.O.P. No. 5 of 1995 is concerned, the decision of the Honourable Apex Court cited supra, would squarely support such dismissal and hence, no more dilation on that point is required. Point Nos. (i) and (ii) are answered accordingly. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Civil Miscellaneous Petition is dismissed. No costs.