R. Ravichandran vs G. Bhuvaneswari Ammal

S. Ashok Kumar, J.—The petitioner / tenant aggrieved over the order of eviction passed by the Rent Controller and the Appellate Authority

has come forward with this Civil Revision Petition.

The brief facts of the case are as follows:

The petitioner is the tenant and the respondent is the land lady. Earlier, the respondent filed R.C.O.P. No. 773 of 1993 against the petitioner and

the other tenants to evict him and for demolition and reconstruction. But, he was not successful in the said R.C.O.P. Since the petitioner / tenant

committed default in payment of rents, he filed R.C.O.P. No. 949 of 2004 to evict the tenant on the ground of wilful default. Even after receipt of

summons, on the first hearing, the petitioner remained absent and he was set exparte. He filed an application M.P. No. 788 of 2004 to set aside

the exparte order. Meanwhile, the respondent filed M.P. No. 875 of 2004 u/s 11(3) of the Act and the Rent Controller passed a conditional order

directing the petitioner to pay a sum of Rs. 19,600/- towards rental arrears for the period from October 2003 to November 2004. The petitioner

complied with the condition. After trial, the petitioner before the Rent Controller contended that he was sick and therefore count not attend the first

hearing and since he was out of station for treatment, he was not able to pay the rent and therefore according to him the default of payment of rent,

though admitted was not wilful. However, the learned Rent Controller came to the conclusion that the petitioner committed wilful default in

payment of rent and therefore passed an order to evict the petitioner from the premises. Aggrieved over the said order, the petitioner preferred an

appeal in R.C.A. No. 502 of 2005 before the appellate authority, who by an order dated 15.03.2006 confirmed the order of Rent Controller and

dismissed the appeal. Aggrieved over the same, this revision has been filed.

Mr. Ashok Menon, the learned Counsel appearing for the petitioner would contend that on 28.07.2004, the first hearing date, the petitioner was

sick and he was not able to attend the Court and produced Medical Certificate to that effect. Further, the learned Counsel would contend that

settlement talks are going on between the petitioner and the respondent and therefore it was the respondent who asked the petitioner not to pay

the rent, in view of the proposed settlement.

As regards the said settlement, evidence was let in before the Rent Controller and the Rent Controller has not believed the settlement, so also

the Appellate Authority has not believed the talks of settlement as alleged by the petitioner. The burden is on the petitioner to prove that in view of

the settlement arrived between the petitioner and the respondent, the petitioner did not tender the rent. It is not a case of the land lady refusing to

receive the rent. Even if the land lady refuses to receive the rent from the tenant, option is open to deposit the same in the Court. But the petitioner

has not chosen either to deposit the rent or to pay it to the land lady. What is wilful default has been considered in several cases as follows:

1992 II MLJ 23 : wilful default in payment of rent - landlord consenting to collecting rent for two or three months at a time - non payment of rent

for 3 months, not a case of wilful default

1995 II MLJ 211 : Unless the element of indifference which is wanton and deliberate, besides being designed is provable and proved in the

attitude of the tenant, it cannot be said that all defaults made in payment of rent are to be automatically characterised as wilful default - no adoption

of procedure prescribed u/s 8 does not throw any light on want of bonafides of tenants - Section 8(5) held not mandatory

The Hon''ble Supreme Court in 1985 SC 582 (S. Sundaram v. V.R. Pattabiraman) has observed as follows:

a) there should be a default to pay or tender rent,

b) the default should continue even after the landlord has issued two months notice claiming the arrears of rent,

c) if, despite notice, the arrears are not paid the tenant is said to have committed a wilful default and consequently liable to be evicted forthwith.

The correct interpretation would be that, where -

1) no notice, as required by the Explanation, is given to the tenant, the Controller or the Court can certainly examine the question whether the

default has been wilful and to such a case the Explanation would have no application.

2) where the landlord chooses to issue two months notice and the rent is not paid then that would be a conclusive proof of the default being wilful

unless the tenant proves his incapability of paying the rent due to unavoidable circumstances.

The Explanation does not at all take away the mandatory duty cast on the Controller in the proviso to decide if a default is wilful or not. Indeed, if

the landlord chooses to give two months notice to his tenant and he does not pay the rent, then, in the absence of substantial and compelling

reasons, the Controller or the Court can certainly presume that the default is wilful and order his eviction straightway. The view that whether two

months notice for payment of rent is given or not, it will always be open to the Controller under the proviso to determine the question of wilful

default cannot be accepted because that would render the very object of Explanation otiose and nugatory. Thus it can be said that where no notice

is given by the landlord in terms of the Explanation, the Controller has the undoubted discretion to examine the question as to whether or not the

default committed by the tenant is wilful. If he feels that any of the conditions is lacking or that the default was due to some unforeseen

circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days, an if within that

time the tenant pays the rent, the application for ejectment would have to be rejected. But if the landlord chooses to give two months notice to the

tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice, then the Controller would have no

discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he

shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord.

There is no denial that rents were not paid for seven months. Even after receipt of the summons from the Court on the first date of hearing, the

petitioner failed to appear in Court and also deposit the rent. As observed by the Appellate Authority, the petitioner should be very vigilant when

an earlier attempt of the land lady to evict him under the motion of demolition and reconstruction failed. However, till an conditional order was

passed by the Rent Controller, the petitioner did not choose to tender the rent to the respondent or deposit the same in Court.

It is also stated in the Appellate Authorities order that even during the pendency of the appeal, he was liable to pay rent from July 2005 to

February 2006. These findings would show that the petitioner has gone in default of payment of rent.

The Rent Controller and the Appellate Authority have rendered the concurrent finding on the question of wilful default in the payment of rent. In

1999 III MLJ 130 (Sivathanu Pillai v. Subramaniam), this High Court has held as follows:

The learned Counsel for the respondent/landlord would cite the decisions in (1) Thayammal v. K. Subramaniam (1989) 1 MLJ 407, (2) C.

Thangaswamy Nadar Vs. Pappa and Others, and (3) Muktha Bai and Others Vs. P. Adinarayana Chetty, , wherein it is held that when there is no

explanation for not paying the rent for the entire period, the tenant is said to be committed wilful default.

On a careful consideration of the materials found in this case, I find that the conclusion arrived at by the authorities below is correct. Moreover,

when the authorities below have rendered a concurrent finding on the question of wilful default taking into consideration of the factual details,

especially when they have exercised their jurisdiction in accordance with law, I am of the view that there is no merit in this revision.

In this case also admittedly, the petitioner has not tendered the rent to the land lady. The alleged settlement talks between the land lady/

respondent herein and the petitioner / tenant is only a wild imagination without any proof. A land lady will not ask the tenant not to pay the rent at

any time and making such averment is against the common sense. Therefore only to escape from his liability, the tenant has taken a stand that at the

request of the land lady, he did not tender the rent.

In the result, I do not find any merits in the Civil Revision Petition and the same is dismissed at the admission stage itself. No costs.

Consequently, connected miscellaneous petition is also dismissed.

However, Mr. Ashok Menon prays six months time to vacate the premises. The petitioner is directed to file an affidavit to vacate the building

within four months and to pay the entire arrears till then.