Rajalinga Chettiar and Others vs Nataraja Mudaliar

AR. Lakshmanan, J.—All these three revision petitions arise out of a common judgment rendered by the appellate authority under the Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960 dismissing the appeals filed by the three petitioners against the orders of eviction passed

against them by the Rent Controller. All the three petitioners are tenants in the various portions in the same building. Two grounds were urged for

the purpose of eviction: (1) wilful default in payment of rent, and (2) bonafide requirement of the premises for the purpose of demolition and re-

construction.

The Rent Controller by a common judgment in all the three rent control petitions filed by the petitioners, held that the grounds of wilful default in

payment of arrears of rent and the bonafide requirement of the premises for the purposes of demolition and reconstruction, has been established.

On appeals filed by the petitioners, the appellate authority confirmed the findings of the Rent Controller and ordered eviction. In these three

revision petitions, the petitioners challenged the findings rendered by the Appellate Authority on the above two grounds.

Rajalinga Chettiar is the petitioner in C.R.P. No. 371 of 1990. He became a tenant under the respondent on 1.12.1978 in respect of Door No.

187, Rajaveedhi, Kurinjipadi, Cuddalore Taluk, on a monthly rent of Rs. 75 per mensem. According to him, he was regularly remitting the rent and

the respondent in May, 1983 demanded enhanced rent which he refused to pay. He is running a textile shop in the petition premises. Since the

respondent did not send anybody to receive the rent as he was doing earlier, he sent a sum of Rs. 225 by money order representing the rent for the

months of May, June and July, 1983 and the same was received by the respondent on 11.8.1983. After receiving the rent, the respondent sent a

notice on 18.8.1983 as if the petitioner is in arrears of Rs. 900 completely suppressing the receipt of the Money order. The petitioner tenant, on

27.9.1983, sent a reply denying the averments in the notice. Again for August, 1983 the petitioner sent the rent by money order on 23.9.1983, but

the respondent refused it. Immediately thereafter, the petitioner tenant deposited the amount in Post Office Savings Bank Account in his name. On

29.9.1983, he called upon the respondent to specify a Bank so that the rent could be deposited. The respondent without specifying a Bank, issued

another notice on 6.10.1983 stating that he was not prepared to receive the rent. According to the petitioner, he was regularly depositing money in

the Post Office Savings Bank Account, and when the position being thus, the respondent filed R.C.O.P. No. 25 of 1986 on the file of the Rent

Controller on the ground of wilful default as well as for demolition and re-construction. In the petition, it was alleged by the respondent herein that

the shops are in dilapidated condition and required demolition and re-construction. The petitioner herein filed a detailed counter-affidavit refuting

the allegations of the respondent.

In respect of Door Nos. 188 and 184 adjoining the petitioner''s shop, a similar allegation of wilful default has been put forward by the

respondent in a similar manner. According to the petitioners, they were forced to deposit the money in the Post Office Savings Bank Account since

the respondent refused to receive the rent and also did not specify a Bank. An Advocate- Commissioner was appointed to inspect the premises

and he filed a report. Subsequently the court appointed an Engineer, P.W.D. to inspect the premises. However, the said Engineer filed his report

only for Door No. 184 and he did not file any report in respect of premises in R.C.O.P.Nos. 25 and 26 of 1986, for which an Advocate-

Commissioner was also appointed. The Engineer was directed to inspect the petitioner''s premises (C.R.P. No. 371 of 1990) in respect of Door

No. 187 and other premises also, in the interest of parties.

The Rent Controller passed an order of eviction holding that there is wilful default and that the building requires demolition. Aggrieved against

the same, the petitioners herein preferred Rent Control Appeals before the appellate authority who confirmed the order of the Rent Controller. In

fact, the petitioner in C.R.P. No. 371 of 1990 filed an application before the appellate authority to call for the report in respect of his premises by

an Engineer, but the request was not acceded to.

D. Rajaram Naidu is the petitioner in C.R.P. No. 373 of 1990. He became a tenant under the respondent on 1.12.1978 agreeing to pay Rs. 75

per month by way of rent. He is running a hardware shop in the petition premises. During May, 1983, the respondent demanded enhanced rent

through one Krishnasami Chettiar who was working under the respondent for which the petitioner did not agree. The respondent did not send

anybody to collect the rent. Therefore, the petitioner was forced to pay the rent for the months of May, June and July, 1983 by money order which

was received by the respondent on 11.8.1983. Thereafter, the respondent sent a notice on 18.8.1983 as if the petitioner is in arrears of Rs. 75

suppressing the receipt of the money order. The petitioner sent a reply on 27.9.1983 denying the averments and sent the rent by money order for

August, 1983 on 23.9.1983. The respondent refused to receive the same and therefore, the petitioner deposited the amount in the Post Office

Savings Bank Account on 29.9.1983. He issued a notice calling upon the respondent to specify a Bank so that the rent could be deposited. The

respondent without specifying a Bank, issued another notice on 6.10.1983 stating that he was not prepared to receive the rent. Thereupon, the

respondent filed R.C.O.P. No. 26 of 1986 which was allowed and the appeal (R.C.A. No. 25 of 1988) filed by him, was also dismissed and

aggrieved by the order of the appellate authority C.R.P. No. 373 of 1990 was filed.

R. Subramanian is the petitioner in C.R.P. No. 372 of 1990. He become a tenant under the respondent on 1.12.1978 and was paying Rs. 75

per month by way of rent. He is running laundry shop in Door No. 184, Rajaveedhi, Kurinjipadi. According to him, till July, 1983 there was no

dispute and then the respondent demanded higher rent from him which he refused to pay. Thereafter, the respondent did not send anybody for

collecting the rent. Without collecting the rent, the respondent issued a notice. Thereafter, the petitioner remitted the following amounts viz.,

23.9.1983 - Rs. 200,3.10.1983 - Rs. 600,1.5.1984 - Rs. 400 and 4.6.1985 Rs. 400 to the respondent''s father. Thereafter, the respondent filed

R.C.O.P. No. 27 of 1986 on the file of the District Munsif- Rent Controller on the ground of wilful default and also for demolition and re-

construction. The case of the respondent is that the building is required for demolition and for re-construction. The Rent Controller ordered

eviction on both the grounds of wilful default and for demolition and re-construction which was confirmed by the Appellate Authority in R.C.A.

No. 26 of 1988.

As already seen, the notice dated 18.9.1983 marked as Ex.A-1 was issued to all the three tenants calling upon them to vacate the respective

premises and deliver vacant possession to the respondent herein within a week from the date of receipt of the notice. It is alleged in that notice that

the tenant R. Subramanian is in arrears to the extent of Rs. 900 ending with 31.8.1983 and D.Rajaram Naidu and P.K. Rajalinga Chettiar are in

arrears to the extent of Rs. 75 individually ending with 31.8.1983 and therefore, they have committed wilful default in the matter of payment of rent

and have made themselves liable to be evicted. It is also further alleged that the premises in the occupation of the landlord are in a bad condition of

disrepair and the roof is leaky and the rafters have come down and likewise the shops in the occupation of all the three tenants are in a damaged

and decrepit condition and therefore, the landlord intends to demolish the entire building i. e., all the five shops including the portion in the

occupation of the landlord and put up a new construction in its place. The concluding sentence in the notice Ex. A-1, dated 8.9.1983 is very

relevant to be noticed. It reads thus:

If the building is not pulled it will collapse at any time and my client will be put to heavy loss. My client intends to demolish all the shops and put up

a pucca new construction in its place.

Even though it was alleged that if the building is not pulled it will collapse at any time, the landlord has chosen to file three rent control original

petitions against the petitioners herein only in the year 1986. On the question of bona fide requirement of the premises for demolition and re-

construction, the landlord must prove that there is absolute bona fide in his request on the requirements of the premises for the purpose of

immediate demolition and re-construction. As already stated, even though the notice was issued on 18.9.1983 stating that the building will collapse

at any time if it is not demolished, the landlord has chosen not to file rent control petitions for a period of three years and odd. The singular factor is

enough for this Court to reject the plea of the landlord''s requirement of the building for demolition and re-construction. It appears that the landlord

is not so serious in seeking eviction on the ground of demolition and re-construction. To a query from the court as to the delay of three years and

odd in filing petition learned Counsel appearing for the landlord was not in a position to place before this Court or explain the reason for the delay

which itself would go to show that the requirement of the landlord for the purpose of demolition and re-construction, is not bona fide. No serious

arguments were advanced on this question by the learned Counsel for the landlord and no authority was placed justifying the delay of 3 years and

odd in filing the petition for demolition and re-construction. Since I am rejecting the claim of the landlord u/s 14(1)(b) of the Act on this short

ground of inordinate delay, I am not going into the merits of the rival claims of both parties on this issue which I feel, is wholly unnecessary.

However, the question of wilful default in payment of rent, was argued very seriously by the learned Counsel for the landlord. It is the case of

the tenants in all the three petitions that the landlord has demanded increased rent which the tenants declined to pay and thereupon the landlord did

not send anybody to collect the rent as has been done earlier for May, June and July, 1983. It is also the case of the tenants that the money order

for three months rents sent by P.K. Rajalingam Chettiar and D.Rajaram Naidu were received by the landlord under Exs.P-5 and P-9, dated

11.8.1983. Thereupon a notice has been issued on 18.9.1983 by the landlord under Ex.A-1 alleging arrears of rent of Rs. 75 individually in

respect of D. Rajaram Naidu and P.K. Rajalinga Chettiar ending with 31.8.1983 and the alleged arrears of Rs. 900 ending with 31.8.1983 so far

as the tenant R. Subramaniam is concerned. On 23.9.1983 Rajalinga Chettiar and D. Rajaram Naidu sent Rs. 75 under Exs.B-8 and B-11. The

landlord refused to receive the money orders. However, the Rent Controller and the appellate authority did not agree with the case of the tenants

regarding this refusal. On 27.9.1983 a reply was sent for and on behalf of D. Rajaram Naidu and P.K. Rajalinga Chettiar through their counsel

Mr. A. Chakrapani in reply to the notice dated 18.9.1983 under Ex.A-1. The tenants have expressed their willingness to send the rent by money

order every month to the landlord. Admittedly on 28.9.1983 under Exs.B-10 to B-l2 Rajalinga Chettiar and Rajaram Naidu opened postal

account in their names. In fact, a letter was sent on 29.9.1983 (not marked) calling upon the landlord to specify a Bank. On 6.10.1983, the

landlord sent a reply stating that his client was not prepared to receive the rent. It is useful to re-produce the relevant passage from Ex.B-6 the

reply notice dated 6.10.1983. It reads thus:

My client is not prepared to receive the rent from your client. Please ad vise your client to vacate the property and deliver vacant possession to my

client. If they do not, my client will file an application for eviction, and they will be held liable for all costs and damages.

R. Subramanian, the tenant has also paid rents after notice as follows:

23.9.1983 - Rs. 200:3.10.1983 - Rs. 600 (referred to in Ex.B-4) 1.5.1984 - Rs. 400:4.6.1985 - Rs. 400.

Payments prior to notice were also made under Exs.B-1, B-13 and B-14. In fact, monies deposited in the Post Office Savings Bank Account

were withdrawn by the landlord on 16.4.1988 when the matter was pending before the Rent Controller.

As already stated, no serious argument was advanced on the question of bonafide requirement of building by the landlord for the purpose of

demolition and re-construction. On the question of wilful default, serious arguments were advanced by both parties.

According to Mr. G. Rajagopalan, learned Counsel for the petitioners- tenants, since the rents sent by money order were refused, the tenants

had to deposit the same in the Post Office Savings Bank Account and that Section 8(2) of the Act is only an enabling section to prove the bona

fide of the tenant and absence of wilfulness on the part of the tenant in the matter of payment of rent. Therefore, he would contend that the non-

adoption of the procedure prescribed u/s 8(2) which could be adopted by the tenant in his discretion, does not throw any light upon want of bona

fide of the tenants in the instant cases. Therefore, he would further contend that the course adopted by the tenant establishes their bona fides.

On the other hand, the leaned counsel for the landlord contended that even if the landlord has not specified a Bank and had refused the money

orders, nothing prevented the tenant by filing a petition for depositing the rent into rent control court so as to avoid wilful default in payment of rent.

It is further contended that even assuming that the tenants had deposited the rents in their names in the Post Office Savings Bank Account, the

landlord was not at all aware of the said deposit and that he was not even intimated of the said deposits and the landlord had lost the benefit of

using the monies for his own purpose and therefore, the course adopted by the tenants is against the mandatory requirements of Section 8 of the

Act. Since the tenants had taken the risk and failed to resort to the remedies available u/s 8 of the Act, it has to be construed the default as wilful

and therefore, the tenants are not entitled to the protection under the Act, as the factum of deposit was not brought to the notice of the landlord

and therefore, the action of the tenants is wilful.

Mr. G. Rajagopalan in support of his contention cited the following authorities which are to the effect that the procedure prescribed u/s 8 of the

Act is only optional and not mandatory. They are:

Thaiyalnayagi Ammal v. Ayyana Chettiar 1976 T.L.N.J. 72 (Ramaprasada Rao, J.)

A. Soundarapandian Nadar v. Madasamy Mudaliar (1982) 95 L.W. 107. (Singaravelu, J.)

K. Mohideen Sahib Vs. Theodre Samuel, . (K.M. Natarajan, J.)

3-a. Abdul Majeeth v. Masiammal 1981 T.L.N.J. 315. (Sengottuvelan, J.)

Durgai Ammal v. R. T. Mani (1989) 1 L W. 155. (Sathiadev and Bellie, JJ.)

Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994) 1 L.W. 340. (Ratnam, J.)

Padmavathi Ammal Vs. Gopal, . (Pratap Singh, J.)

G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. 1995 All Ind H C Cas 472. (Pratap Singh, J.)

On the other hand, Mrs. Pushpa, learned Counsel for the respondent landlord cited the following decisions in support of her contention that

Section 8 is mandatory and not optional. They are:

Kalyani Vs. G.V. Subramaniam and Others, . (Ratnam, J.)

N. Damodaran Naicker and Another Vs. Janaki Ammal, . (Thangamani, J.)

Marudachala Udayar Vs. Dhandapani, . (Nainar Sundaram, J.)

Vasavambal Vs. Chenniappa Gounder, . (Ratnam, J.)

Muktha Bai and Others Vs. P. Adinarayana Chetty, . (Sivasubramaniam, J.)

Umrao Bai v. Dhanalakshmi Ammal (1989) 2 L.W. 7. (Sivasubramaniam, J.)

Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum 100 L.W. 510. (Padmini Jesudurai, J.)

Let me now deal with the judgments cited by Mr. G. Rajagopalan. Thaiyalnayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. 15 : 1976

T.LN.J. 72, is a judgment of Ramaprasada Rao, J., as he then was, in an identical matter. In that case, the tenant, to avoid the situation of herself

being branded as a person committing wilful default in payment of rents, proved her bona fides by producing evidence to the effect that since the

rents by money order were refused, she had to deposit the same in the Savings Bank Account in a Post Office. Contrary to the finding of the Rent

Controller, the Appellate Authority found that the petitioner- tenant had committed wilful default in payment or tendering of the rents. Reliance was

placed by the landlord on Section 8(2) of the Act which says that the Tenant may, in such situations, call upon the landlord to name a Bank for

depositing the arrears then accrued and thereafter to be paid. Ramaprasada Rao, J., held that this is only an enabling section to prove the bona fide

of the tenant and absence of wilfulness on the part of the tenant in the matter of payment of the rents and that the non-adoption of the procedure

prescribed u/s 8(2) which could be adopted by the tenant in her discretion does not throw any light upon want of bona fides of the tenant in that

case. The learned Judge said that the course adopted by the tenant in depositing the rent in the Post Office Savings Bank Account, establishes her

bona fides. In the concluding portion the learned Judge has observed that the procedure prescribed u/s 8(2) of the Act is only optional and not

mandatory. The learned Judge has observed as follows:

As has been already observed on many occasions, in situations like this, that unless an 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 the payment of rent are to be

automatically characterised as wilful default. I do not agree with the finding of the Appellate Court, in which a material irregularity is patent, that the

petitioner tenant has committed wilful default in the payment of rents.

A. Soundarapandian Nadar v. Madasamy Mudaliar (1982) 95 L W. 107. (Singaravelu, J): That was also a case of wilful default in payment of

rent. The Rent Controller accepted the plea that there was wilful default. The Appellate Authority confirmed the finding with reference to the wilful

default. In the Revision, it was alleged that the tenant failed to pay the rent from December, 1976 and that the default is wilful. The defence of the

tenant was that he sent money orders, but the landlord refused the same and thereafter, he deposited the monthly rents in Canara Bank from

September, 1977 onwards. He also produced the pass book for perusal before the appellate court. It was argued before the learned Judge by the

leaned counsel for the landlord that even if the passbook is allowed to be received in evidence it will only show that the tenant has been depositing

the rents in Canara Bank in his own name and not in the name of the landlords and therefore, it is not sufficient compliance of Section 8 of the Act.

The judgment of Ramaprasada Rao, J. in Thaiyalnayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. 15; 1976 T.LN.J. 72, was cited before the

learned Judge. Ultimately, the learned Judge, however, set aside the order of eviction passed by the court below and remanded back the matter to

the rent controller for the purpose of receiving the pass book as additional evidence on application by the tenant.

K. Mohideen Sahib Vs. Theodre Samuel, . (K.M. Natarajan, J.): In this case, money order sent by the tenant was refused by the landlord

repeatedly and in view of the fact that he has issued a notice calling upon the respondent to specify the name of the bank into which the rent has to

be deposited and immediately after receipt of the notice, he deposited the entire arrears. Under such circumstances, the learned Judge has

observed that it cannot be said that the tenant committed wilful default in payment of rent. The learned Judge had also followed the judgment in A.

Soundarapandian Nadar v. Madasamy Mudaliar (1982) 95 L.W. 107, of Singaravelu, J., who held that the procedure prescribed u/s 8(2) of the

Act is only optional and not mandatory and the non-adoption of the procedure does not constitute wilful default.

Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155 -(Division Bench: Sathiadev and Bellie, JJ.): The two is absolutely nothing in the provisions as to

where the amount has to be deposited and no procedure has been contemplated and as such the failure to adopt the procedure u/s 8(5) would not

constitute wilful default.

Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, -Division Bench (Sathiadev and Bellie, JJ.): The two revisions in this case came up before

Mohan, J., on 19.9.1983. He directed the papers to be placed before Hon''ble the Chief Justice for posting the same before a Bench, since he

was of the opinion that a careful reading of the decision in K. Venkataramani Vs. S. Aravamuthan and Others, , shows that the principle laid down

in 0.41, Rule 22 of the CPC though not made specially applicable to the proceedings arising under the Tamil Nadu Buildings (Lease and Rent

Control) Act, on the principles of justice, equity and good conscience, it can be done. The learned Judge felt that such an interpretation would lead

to widening the revisional jurisdiction, which is conferred specifically u/s 25 of the Tamil Nadu Act 18 of 1960 which will obliterate the distinction

between the revisional and appellate jurisdiction. Since Mohan, J., was unable to agree with the judgment of this Court in K. Venkataramani Vs. S.

Aravamuthan and Others, the same was placed before a Division Bench. The matter was heard by the Division Bench consisting of Sathiadev and

Bellie, JJ. The Bench on a consideration of the various authorities cited by both parties, came to the following conclusions.

Hence, the reference made is answered by holding that, on a proper interpretation of the scope of powers exercisable u/s 25, it is well open to the

respondent to satisfy the High Court about the correctness, legality, etc., of the order; once that appellate order is brought before it by an

aggrieved party and in examining the records of the Appellate Authority it could do it only within the ambit of powers that could be exercisable by

it u/s 25.

The reference was answered by the judgment of the Division Bench dated 27.1.1987. After answering the reference the Division Bench again

heard the matter on merits and rendered their decision on 4.3.1987. It was also a case of wilful default on the part of the tenant in paying the rent.

The Rent Controller rejected the landlord''s petition, i.e., on the question of denial of title and wilful default in payment of rent. The landlord

preferred an appeal, and the appeal was allowed on both the grounds. The tenant preferred revision in this Court. The learned single Judge who

heard the revision set aside the order of the appellate authority and remitted back the matter for further enquiry. As directed, further enquiry was

made. Thereupon, the appellate authority found that the tenant had committed wilful default in payment of rent. As against the said decision, a

revision was filed in this Court. It was argued before the Division Bench that the respondent has not sent the rent to the landlord, but also has not

deposited it and therefore, the tenant must be deemed to have committed wilful default in payment of rent. In support, of this plea, reliance was

placed on the decision G.K. Jose and Others Vs. Ramathal, , Ramanujam, J in this judgment held as follows:

On the question of wilful default in payment of arrears of rent, there is no dispute that for certain months the rents have not been paid. But, such

default, it is urged, cannot be taken to the wilful. But the finding of the appellate authority is that the default committed by the petitioners-tenants is

wilful in that even if the landlady has refused to receive the rent, they should have deposited the amounts in a bank or before the Rent Controller

which they have not done, and once they have not remitted the rent after knowing the consequences of non-payment the default should be taken to

be wilful. On the materials, I am not able to say that the decision of the appellate authority on this question is erroneous.

Citing the decision of Ramanujam, J. which was disposed off at the admission stage as above, it was argued before the Division Bench that the

tenant had right to deposit the rent before the Rent Controller but did not do so and hence it follows that the tenant had committed wilful default.

While disagreeing with the view of Ramanujam, J., the Bench has observed as follows:

We are unable to agree with the learned Judge. Section 8 provides that in case the landlord refuses to receive rent tendered by the tenant the

tenant can call upon the landlord to name a bank where she can deposit it and if he fails to do so the tenant can send it by money order and if even

that money order is not received, the tenant can deposit the rent before the Rent Controller. But it is nowhere stated that if the tenant does not do

so it will amount to wilful default. When a landlord refuses to receive the rent sent by the tenant it is his fault. He cannot subsequently say that the

tenant has not exercised his right given u/s 8 and therefore he must be taken to have committed wilful default. Similarly if the tenant has not

deposited the rent before the Rent Controller in case of bonafide doubts as to the person who is entitled to receive the rent and the person

concerned does not help to remove the doubt of the tenant, the tenant cannot be said to have committed wilful default in payment of rent.

Therefore, we find that the finding of the appellate authority that the tenant committed wilful default in payment of rent is wrong and hence that

finding has to be set aside.

Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994) 1 L.W. 340 (Ratnam, J.); In this case, it was held as

follows:

In this case, there is no dispute that the money order sent by tenant was refused by landlord. Thereafter, it was open to the respondent (tenant) to

have followed the procedure laid down in the Act with reference to the deposit of rent, but instead, he had opened an account and had been

depositing the rents in that account so as to make it available to the petitioner whenever required. Though it may be that the respondent (tenant)

was not in order in not having resorted to the provisions of the Act with reference to the payment of rents, inasmuch as the evidence of R.W. 1 that

he had deposited the amounts in a bank account has not been repudiated or rejected as unacceptable, it follows that there could not be any wilful

default as such in the payment of rents in this case, as contended by the learned Counsel for the petitioner.

Padmavathi Ammal Vs. Gopal, , (Pratap Singh, J.): This case was disposed of at the admission stage. The tenant in that case filed a petition u/s

8(5) of the Act seeking for permission to deposit the rent in court. In that petition, he had stated that since the landlord had been refusing to receive

the rent despite the repeated notice to the landlord to inform the Bank in which rent is to be deposited, he had not sent any reply and since he

continues to refuse to receive the rent, he had filed the petition u/s 8(5) of the Act. The landlord resisted the petition that there was wilful default in

payment of rent and that the tenant never offered to pay the rent and since he had not taken steps which he was obliged to take under the

provisions of the Act, the petition is liable to be dismissed. When construing the scope of Section 8, the learned Judge has observed as under:

The procedure laid down in Section 8 prescribes that the tenant should take certain steps to pay rent and if the landlord still consistently refuses to

receive the rent, the tenant, can resort to Section 8(5) of the Act and pay the rent before the Rent Controller and continuously pay the rent. The

first step is that the tenant should require the landlord to specify within 10 days from the date of receipt the bank in which the rent is to be

deposited to the credit of the landlord. If the landlord specifies the bank, the tenant can remit the rent into the bank and shall continue to deposit

the rent into the Bank. In case, the landlord does not specify the bank, then the tenant is obliged to remit the rent to the landlord by money order

after deducting the money order commission. If still the landlord refuses to receive the rent by money order under Sub-section (4) then the tenant

may deposit the rent before the Rent Controller and to continue to deposit the same. Section 8 enables a tenant to pay the rent in the aforesaid

manner. When the tenant chooses to exercise the enabling provision, the tenant shall take steps one after another, as laid down in the procedure

and only if the landlord still refuses to receive the rent then he can come to the court with a petition, as provided u/s 8(5) of the Act. In the instant

case, the tenant had skipped Section 8(4) of the Act, which he is obliged to take before he comes to court. Since he had not done it, the petition

filed by him u/s 8(5) of the Act has to necessarily fail. The appellate authority had hot considered this aspect of this case, and he had committed the

error and consequently it is liable to be set aside.

Thus, it is seen from the above judgment that Section 8(5) of the Act is only an enabling provision.

G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. (1995) 1 All Ind H C Cas 472, (Pratap Singh, J.): The revision petition was directed

against the order of the Appellate Authority who found that there was no wilful default in payment of rent, concurring with the learned Rent

Controller. The landlord came forward with a revision to this Court. An argument was advanced on behalf of the landlord that the tenant could

have filed a petition for deposit of the rent into court, and could have taken steps for payment of rents as per the provisions of the Act. Rejecting

the contention Pratap Singh, J. has observed as follows:

By virtue of the events in the previous months that there has been legal tender and refusal thereof, the failure on the part of the tenant to take other

steps for payment of rent as per the provisions of the Buildings Act, cannot be characterised as wilful default in payment of rent.

Let me now deal with the authorities submitted by the learned Counsel for the landlord. Kalyani Vs. G.V. Subramaniam and Others, .

(Ratnam, J.): The landlord in that case prayed for an order of eviction against the petitionen from the room in her occupation in the ground floor on

the ground that she had committed wilful default in payment of rent. The tenant filed a counter denying having committed wilful default and she had

also deposited the entire rent in Indian Bank, Kothaval Bazaar to show her bona fides as the money orders sent by her had been refused by the

landlords. The Rent Controller found that the landlord had not established that the petitioner had committed wilful default in payment of rent and

therefore, the landlord is not entitled to an order of eviction against the tenant. The'' appellate authority held that the tenant had not paid rents and

that she had also not taken steps whatever to deposit the rent and therefore, she should be held to have committed wilful default in payment of rent.

This Court held as follows:

When the rent tendered was not properly tendered and in due time as per the provisions of the Act, it cannot be said that the refusal by the

landlords to receive the rents so tendered was improper. It is in this context that the provisions of Section 8 of the Act are relevant. If, according to

the petitioner, the refusal of the rent by the landlords sent under Exs.R-2 to R-5 was not justified then, u/s 8(2) of the Act, the petitioner should

have required the landlords to specify within 10 days of receipt of a notice sent by her, a Bank in which the rent may be deposited by her to the

credit of the landlord. u/s 8(3) of the Act, on the specification of such a Bank the tenant should deposit the rent into the Bank and continue to

deposit the subsequent rents also. In the event of the landlord not specifying a Bank, Section 8(4) of the Act provides that the tenant shall remit the

rent to the landlords by money order and if the landlords refuse to receive the rent remitted by money order, then the tenant may deposit the rent

before the Rent Controller u/s 8(5) of the Act. It is thus seen that Section 8 of the Act makes comprehensive provision protecting the tenant from

wrongful refusal of a landlord to receive the rents. It is not the case of the petitioner, as stated earlier, that the rent was tendered to the landlords as

it should have been and that it was refused.

It was further observed as follows:

The question of remitting the rent by money order statutorily arises only in the event of the omission on the part of the landlords to specify a Bank

and without even calling upon the landlords to name a Bank, the petitioner had proceeded to send the rents consolidated for three months and two

months, without any justification whatever. Even on the basis that the landlords had not specified a Bank and had refused the money orders,

nothing prevented the petitioner from filing an application for deposit before the concerned Rent Controller with a view to deposit the rents, so as

to avoid wilful default in the payment of rents.

It is to be noticed that the above decision was rendered by Ratnam, J., on the question of successive petition for eviction with reference to a cause

of action arising after the filing of the prior application for the same relief. Therefore, this judgment is distinguishable on facts and circumstances of

the case on hand.

N. Damodaran Naicker and Another Vs. Janaki Ammal, . (Thangmani, J.): A revision was filed by the landlord who instituted eviction action

against the tenant on the ground of wilful default etc. The tenant resisted the action contending that she had paid the rent up to may, 1984 and in

fact, on 25.7.1984, she called upon the landlord to specify a Bank wherein she could deposit the rents. However, the landlord never replied. The

Rent Controller ordered eviction and on appeal, the appellate authority took the view hat non-payment of rent is not wilful and accordingly allowed

the appeal and set aside the order of eviction passed by the Rent Controller, Before Thangamani, J, the decision rendered by Nainar Sundaram, J.,

in Marudachala Udayar Vs. Dhandapani, , was alone cited. The learned Judge has pointed out that to test the case of the parties in such a context,

the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction, which is

incorporated in the Act. The learned Judge concluded by saying as under:

Where wilful default in payment of rent is alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the

payment of the rent, the court cannot ignore the implications of Section 8 and assess the controversy without reference to such implications. In the

absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents

and the landlord must have declined to issue the receipts.

It is to be noticed that none of the judgments cited by Mr. G. Rajagopalan, learned Counsel for the tenants referred to supra, have been cited

before Thangamani, J. This apart, the Division Bench judgment reported in DurgaiAmmal v. R.T. Mani (1989) 1 L W. 155 was not cited at all

before the learned Judge. Therefore, the learned Judge had no occasion to consider and deal with the views expressed by other learned Judges as

referred to earlier and also of the judgment of the Division Bench.

Nainar Sundaram, J. in Marudachala Udayar Vs. Dhandapani, . The landlord preferred a revision in this Court, and sought eviction of the

tenant on the ground of wilful default and requirement of the premises for the occupation of his daughter. On the question of wilful default, the rent

controller upheld the case of the landlord and eviction was ordered. The appellate authority reversed the finding of the rent controller on the

question of wilful default. The case of the landlord was that there was failure by the tenant to pay the rent continuously from March, 1973 to July,

1974. The tenant has urged that he has paid rents. Nainar Sundaram, J., (as he then was), suggested that to test the case of the parties in such a

context, the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction. The

learned Judge observed as follows:

There is ample safeguard made for the tenant in case the landlord refuses to receive the rent or evades the receipt of the rent. The receipt of the

rent contemplated under Sub-section (2) of Section 8 must only be in accordance with the provisions of Sub-section (1). If the parties choose to

adopt any other mode of payment and acknowledgement of the rents they have to be content with the consequences, beneficial or otherwise, that

may follow there from. If the tenant proves the payment of the rent by other modes, the court can accept such proof and relieve the tenant from the

consequences of Section 10. But, where wilful default in the payment of rents is alleged by the landlord and the answer of the tenant is that the

landlord never issues receipt for the payment of the rents, the Court cannot ignore the implications of Section 8 and assess the controversy without

reference to such implications. In the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume

that the tenant must have paid the rents and the landlord must have declined to issue the receipts.

It should be noticed that the decision rendered by Ramaprasada Rao, J., in Thaiyalnayagi Animal v. Ayyana Chettiar (1976) 1 M.L.J. 15 : 1976

T.L.N.J. 72, was not cited before the learned Judge. This apart, there was no proof of payment of rent and therefore, it would not be in

consonance with the provisions of the Act to presume that the tenant must have paid the rent and the landlord must have declined to issue receipts.

In the instant case, admittedly, the landlord has refused to receive the rent which compelled the tenant to open post office Savings Bank Account

to deposit the rents immediately thereafter.

Ratnam, J. in Vasavambal Vs. Chenniappa Gounder, : In this case, the landlady filed a petition for eviction against the tenant saying that the

tenant has not paid the rents and had thus committed wilful default. The tenant while admitting that he paid Rs. 500 as advance at the time of the

lease, denied that he had committed wilful default in the payment of rents. In addition, it was also claimed by him that the landlord refused to

receive the rent with ulterior designs to get an enhanced rent. The rent controller held that the default in payment of rent committed by the tenant

was wilful. The appellate authority held that under the notices issued by the landlady, no clear two months'' time as required by explanation added

to Section 10(2) had been given consequently, the default committed by the tenant cannot be construed as wilful. On revision, this Court held as

follows:

The Explanation to Section 10(2)(1) added by Tamil Nadu Act XXIII of 1973, does not contemplate that before a default could be construed as

wilful two months'' notice should be given. The explanation only states that if after the issue of notice of two months the rent remains unpaid, the

default will be construed as wilful. The explanation is not exhaustive of all cases of wilful default and it is unnecessary for a landlord to issue a notice

to the tenant giving two months clear time before eviction can be sought on the ground of wilful default. The omission, therefore of the petitioner to

issue two months notice will not render what was clearly wilful default, any the less such wilful default.

Again at page 209, it is observed as follows:

If there was a refusal on the part of the petitioner to receive the rents as the respondent would allege, certainly it was open to him to take

appropriate proceedings u/s 8 of the Act. In the absence of any such proceedings, it is not possible to accept the case of the respondent on the

basis of Exs.B-4 and B-5 that there was a refusal on the part of the petitioner to receive the rents as and when tendered. This explanation not

having been accepted, the conclusion is irresistible that the respondent as found by the lower appellate court, was guilty of non-payment of rent for

a very long time and the omission to pay the rents on time in the instant case is only on account of the supine indifference of the respondent and not

for any other justifiable reason. The respondent should therefore be held to have committed wilful default in the payment of the rents for the period

in question, which would justify an order of eviction being passed against him.

It is to be noticed that before Ratnam, J., the judgment of Ramaprasada Rao, J. in Thaiyalnayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. 15 :

1976 T.L.N.J. 72, was not cited.

Sivasubramanian, J. in Muktha Bai and Others Vs. P. Adinarayana Chetty, : In that case, the revision was directed against the order of the

appellate authority dismissing the appeal by the landlord by agreeing with the finding of the rent controller. The tenant contended that he was

regular in payment of rents, that he was not able to ascertain the details of the legal representatives of the deceased landlord and that therefore, he

was not in a position to pay rents to any one. Further, he submitted that nobody demanded rent from the respondent and as soon as the eviction

petition was filed, the entire rent was deposited by him into court. The tenant, therefore, submitted that he has not committed wilful default in

payment of rent. Sivasubramanian, J. while holding that the tenant has committed wilful default and is liable to be evicted, has observed thus:

Elaborate provision is made u/s 8 of the Rent Control Act for payment of rent in cases when a landlord refuses to accept or evades the acceptance

of rent. In case, where the address of the landlord or his authorised agent is not known to the tenant he may deposit the rent before the Rent

Controller u/s 8(4) of the Act. Again, there is a provision u/s 9(3) of the Act enabling the tenant to deposit rents before the prescribed authority

where any bonafide doubt or dispute arises as to the person who is entitled to receive the rent. When the statute has made specific provisions it is

not open to the tenant to commit default for a long time solely on the ground that he was not aware of the names of the legal representatives of the

landlord. Though there cannot be any hard and fast rule in such matters. In this case the tenant was totally indifferent in the payment of rent and the

failure to pay rent was deliberate. It is no doubt true that there is a clear difference in law between the default and wilful default and that every

default cannot be constrained in law as wilful default. A wilful default is a default accompanied by a particular state of mind which cannot be

directly proved but has to be inferred from the entire complex set of circumstances and that to hold that a tenant is wilful in payment of arrears of

rent, it must be proved beyond boubt that he had exhibited supine indifference and callousness as held in a number of cases. In this case there was

a conscious failure of the tenant to pay rents without any justification and, therefore, there is no jurisdiction for holding that there was no element of

wilfulness. The term wilful default is a meaningful phraseology used by the statute with a definite purpose.

Sivasubramanian, J. in Umrao Bai v. Dhanalakshmi Ammal and Ors. (1989) 2 L.W. 7 (S.N.): The learned Judge has taken the same view as

in the earlier case in Muktha Bai and Others Vs. P. Adinarayana Chetty, . The learned Judge observed thus:

The authorities below took it for granted that rents were regularly deposited in the bank account. But as a matter of fact, it is not so. I do not find

any justification for the conclusions arrived by the authorities below to the effect that by depositing the amount into the bank they have established

their bona fides in not paying the amount to the petitioner. It is significant that even after the specific demand made by the petitioner by issuing

registered notice, the respondents, did not choose to pay the rents to the petitioner by depositing the amounts before the learned Rent Controller.

Even if such a deposit can be taken as sufficient compliance I find it difficult to accept the same since the factum of deposit of every month''s rent

was not brought to the notice of the petitioner. For all these reasons, I find that the findings of the authorities below on the question of wilful default

suffer from a grave infirmity as they have failed to consider the relevant facts and they have failed to exercise their jurisdiction in a proper manner.

Here again, the earlier decisions in Thyaiyalinayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. 15 : 1976 T.L.N.J. 72 of Ramaprasada Rao, J., A.

Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L.W. 107, of Singaravelu, K. Mohideen Sahib Vs. Theodre Samuel, of K.M.

Natarajan, J. and Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, Division Bench consisting of Sathiadev and Bellie, JJ. were not cited before the

learned Judge.

Padmini Jesudurai, J. in Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum 100 L.W. 510: The learned Judge was also of the view that

sending the rents to the previous owner of the property and having the rent deposited in his own account will not amount to tender of rent to the

landlord. The tenant had to send the rent only to the landlord and if the same was refused, he should have followed it up as required of him under

the Act. Here again, the earlier judgments were not cited before the learned Judge.

One more decision of Ratnam, J. reported in K. Avinasilingam v. Hamsa and Anr. 1990 T.L.N.J. 108, can also be referred to in this context

wherein the learned Judge distinguished on facts, the Division Bench judgment of this Court reported in Durgai Ammal v. R.T. Mani (1989) 1

L.W. 155, of Sathia Dev and Bellie, JJ. The tenant was the petitioner in the revision. The landlord prayed for an order of eviction against the tenant

on the ground that having obtained an order for deposit of rents u/s 8(5) of the Act, the tenant wilfully defaulted in payment of monthly rent for the

months of April, etc., of 1983. In the counter-affidavit filed by the petitioner, a plea was raised that as a result of the obtaining of orders u/s 8(5) of

the Act, the landlord could not initiate proceedings for eviction against the tenant u/s 10(2)(b) of the Act and that there was also no wilful default in

the payment of rents for the months in question. The learned Counsel for the tenants contended that when once there is an order passed u/s 8(5) of

Act, resort to eviction u/s 10(2)(i) of the Act cannot be had at all. In support of his contention, attention was drawn to the observations occurring

at page 166 in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155. The learned Counsel for the landlords submitted that where an order for deposit

of rents u/s 8(5) of the Act had been obtained and that had not been complied with, it would be nothing but a case of wilful default, as an order u/s

8(5) of the Act is intended only as a mantle of protection thrown on the tenant against his removability on the ground of wilful default. Ratnam, J.

while considering the rival submissions of both parties, observed as follows:

It has to be remembered that it was the petitioner who had invoked the jurisdiction of the Rent Controller u/s 8(5) of the Act and invite an order

with a view to avert any possible proceedings for eviction on the ground of wilful default being initiated against him by the landlords. In such a

situation, the failure of the petitioner to deposit the rents into court for the months referred to above cannot but be characterised to be deliberate

and wilful.

Again the learned Judge has observed that the tenant who was fully aware of his obligation to deposit the monthly rents u/s 8(5) of the Act

pursuant to the order obtained by him, had admittedly not deposited the rents for the months in question. In the concluding portion of his judgment

it is observed as follows:

Under those circumstances, where an order has been passed u/s 8(5) of the Act, it is but proper that the deposits should be made at least within

the time limit permitted for the payment of rents. The reliance placed by learned Counsel for the petitioner upon the stray observation at page 166

in the decision reported in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, does not in any manner assist the case of the petitioner. In that case,

from the facts as set out therein no order u/s 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant and the

argument that Section 8 of the Act should have been resorted to by the tenant in order to save himself from the consequences of the commission of

wilful default. It was observed that the failure of a tenant to resort to Section 8 of the Act to deposit the rents will not amount to wilful default on his

part in payment of rents. That observation has no relevance whatever in a case like this, where an order u/s 8(5) of the Act had been obtained by

the tenant and the rents had not been deposited in accordance with that order.

It has to be seen that the learned Judge distinguished the order of the Division Bench in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, only

on the ground that in that case, no order u/s 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant. The

learned Judge has not distinguished the finding rendered by the Division Bench while reversing the decision of Ramanujam, J. in G.K. Jose and

Others Vs. Ramathal, , in para 12 of their order. Perhaps, para 12 of the Division Bench judgment would not have been drawn to the attention of

the learned Judge. In this case, the landlord has admittedly refused to receive the rent from the tenant under Ex.B-6 which compelled the tenants to

open the Post Office Savings Bank Account in their names. Admittedly, the landlord had also refused to receive the money orders sent by the

tenant, In fact, a letter was sent from the tenant on 29.9.1983 which has been referred to in Ex.B-6 asking the landlord to name a Bank. However,

on 6.10.1983, a reply was sent by the counsel for the landlord that his client was not prepared to receive the rent. Under such circumstances, the

tenants, in my opinion had taken the right step in depositing the money in the Post Office Savings Bank Account, which establishes the bona fides

of the tenants. As has been observed by Ramaprasada Rao, J. unless an 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 the payment of rent are to be automatically

characterised as wilful defaults. I am, therefore, unable to agree with the findings of the courts below in which a material irregularity is patent, that

the petitioner- tenants had committed wilful default in the payment of rents. I respectfully agree with the view taken by Ramaprasada Rao, J., in

Thaiyalinayagi Ammal v. Ayyanna Chettiar (1976)1 M.L.J. 15 : 1976 T.L.N.J. 72 followed by the views expressed in A. Soundarapandian Nadar

v. Madasamy Mudaliar (1982)95 L.W. 107, (Singaravelu, J.), K. Mohideen Sahib Vs. Theodre Samuel, (K. M. Natarajan, J.), Padmavathi

Ammal Vs. Gopal, , (Pratap Singh, J.), G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. (1995) 1 All Ind H C Cas 472, (Pratap Singh, J.)

and Abdul Majeeth v. Masiammal 1981 T.LN.J. 315, (Sengottuvelan, J.). I am also of the view that in the instant case, the tenants have proved

their bona fides by producing documentary evidence to the effect that since the rents sent by money orders were refused by the landlord and the

landlord himself was not prepared to receive the rents from the tenants under Ex.B-6 dated 6.10.1983, the tenants had to deposit the same in the

Post Office Savings Bank Account.

With respect, I agree with the view taken by Ramaprasada Rao, J. followed by the other learned Judges referred to supra, that Section 8 is

only an enabling provision to prove the bona fides of the tenant and absence of wilfulness on the part of the tenant in the matter of payments of the

rents. I am also of the view that the non-adoption of the procedure prescribed u/s 8(2) which could be adopted by the tenants in their discretion,

does not throw any light upon want of bona fides of the tenants. In the instant case, I am also of the view that the procedure prescribed u/s 8 of the

Act is only optional and not mandatory. This apart, the same view was taken by the Division Bench, in Durgai Ammal v. R.T. Mani (1989)1 L.W.

155, while reversing the decision of Ramanujam, J., in G.K. Jose and Others Vs. Ramathal, . As already indicated, Ratnam, J. has distinguished

the Division Bench judgments in Durgai Ammal v. R.T. Mani (1989) 1 L. W. 155, on the ground that Section 8(5) of the Act had been passed due

to refusal of the landlord in that case. In Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994)1 L W. 340,

Ratnam, J. himself has observed that it was open to the tenant to have followed the procedure laid down in the Act with reference to the deposit of

rent, but instead,.the tenant had opened an account and had been depositing the rents in that account so as to make it available to the landlord

whenever required. However, the learned Judge said that though it may be that the tenant was not in order in not having resorted to the provisions

of the Act with reference to the payment of rents, inasmuch as the evidence of the tenant that he had deposited the amounts in a Bank account, has

not been repudiated or rejected as unacceptable, there could not be any wilful default as such in the payment of rents in that case, as contended by

the landlord. In the instant case also, deposit of rents had been made in the Post Office Savings Bank Account in the name of the tenants by the

tenants, without resorting to the provisions of the Act. With reference to the payment of rents the tenants had produced before the court below the

evidence regarding the deposits. In fact, the landlord has withdrawn the amount after obtaining orders from the Rent Controller, of the deposits

made by the tenant. Therefore, it follows that there could not be any wilful default as such in the payment of rents in the instant case as contended

by the learned Counsel for the landlord. Though a contrary view was taken by Nainar Sundaram, J. in Marudachala Udayar Vs. Dhandapani, , by

Ratnam, J. in Kalyani Vs. G.V. Subramaniam and Others, , by Thangamani, J. in N. Damodaran Naicker and Another Vs. Janaki Ammal, ,

Ratnam, J., in Vasavambal Vs. Chenniappa Gounder, , by Sivasubramanian, J. in Muktha Bai and Others Vs. P. Adinarayana Chetty, and in

Umrao Bai v. Dhanalakshmi Ammal (1989) 2 L W. 7 and by Padmini Jesudurai, J. in Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum

100 L.W. 510, with respect I am unable to agree with the views expressed by them since I am bound by the decision of the Division Bench in

Durgai Ammal v. R.T. Mani (1989)1 L.W. 155.

Their Lordships of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , held as follows:

Thus a consensus of the meaning of the words wilful default'' appears to indicate that default in order to be wilful must be intentional deliberate,

calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default

after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of

wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to

above.

In this case, the landlord was not in a position to prove that default in order to be wilful, as intentional, deliberate, calculated and conscious, with

full knowledge of legal consequences flowing therefrom.

Therefore, I am of the view that the courts below have erred in holding that the premises, the subject matter of the petitions, is bonafide

required by the respondent- landlord for demolition and re-constriction and that the petitioners- tenants had defaulted in payment of rents. As

already seen, the courts below have failed to take into consideration the fact that rents were duly remitted in every month in the Post Office Savings

Bank Account and that therefore, there cannot be any wilful default on the part of all the three tenants against whom different petitions were filed in

an identical manner.

For the foregoing reasons, all the three revision petitions are allowed and the orders of the appellate authority and the rent controller impugned

in these revisions, are set aside. However, there will be no order as to costs.