Ramanath and Chitra vs C. Kamala (deceased), C. Krishnamurthy, C. Parthasarathy and P. Pushpaveni

A.C. Arumugaperumal Adityan, J.—This revision has been directed against the Judgment in RCA No. 893 of 2004 on the file of VIII

Judge(Rent Control Appellate Authority) Court of Small Causes, Chennai which had arisen out of an order in R.C.O.P. No. 44 of 2004 on the file

of XIV Judge(Rent Controller) Court of Small Causes, Chennai. The unsuccessful tenant before the Courts below is the revision petitioner herein.

The landlord had filed R.C.O.P. No. 44 of 2004 u/s 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act (Hereinafter referred

to as ""Act"") before the XIV Judge(Rent Controller) Court of Small Causes, Chennai, on the ground that the tenant had committed default in

payment of monthly rent of Rs. 2000/- from June 2001 to October 2002(17 months) and from November 2002 to November 2003(13 months).

It has further been alleged by the petitioner that even though the rent due for the month of June 2001 to October 2002 for 17 months amounting to

a tune of Rs. 34,000/- was paid by the tenant only as per the direction of this Court in M.P. No. 614 of 2002.

The respondents in their counter would contend that a sum of Rs. 20,000/- was paid towards advance at the time of inception of tenancy on

1.11.2000 and that the mother of the respondents viz., Rajeswari Sivaraman was the original tenant who subsequently died. Thereafter, the

respondents are paying the rent to the landlord without committing any default. When the rent was tendered on 31.5.2001 by the respondents, the

landlord had demanded the tenants to vacate and hand over the possession of the petition scheduled premises to the landlord which necessitated

the tenant to issue notice dated 7.6.2001 asking the landlord to furnish the bank account to enable the tenants to deposit the monthly rent in the

bank account of the landlord. But the landlord had failed to respond the same. Thereafter, the tenants were sending the rents through money order.

Thereafter, the rent due for the month of July 2001 to November 2002 amounting to Rs. 34,000/-(17 months) was also paid by the tenants to the

landlord''s Counsel on 15.11.2002. The earlier petition filed u/s 10(2)(1) of the Act under R.C.O.P.No. 1841 of 2001 was dismissed by the

learned XII Judge, Court of Small Causes, Chennai holding that the tenants have not committed any default . In R.C.O.P. No. 1841 of 2001, the

landlord had filed M.P. No. 614 of 2002 u/s 11(4) of the Act seeking payment of rental arrears for the month from July 2001 to November 2002.

The said petition was allowed by the Court and the order was also immediately complied with by the tenants/respondents. In view of the order

passed in M.P. No. 614 of 2002 in R.C.O.P. No. 1841 of 2001, the respondents have not prosecuted R.C.O.P. No. 1091 of 2002 filed by them

u/s 8(5) of the Act. After pronouncement of the order in R.C.O.P. No. 1841 of 2001 dated 5.1.2004, the respondents had sent a cheque for Rs.

30,000/- towards 15 months rental arrears from 1.12.2002 to 29.2.2004 on 8.2.2004. The respondents are ready to pay the entire rental arrears

of Rs. 32,000/- from 1.12.2002 till 31.3.2004. Hence the petition is liable to be dismissed.

Before the learned Rent Controller, the petitioner has examined herself as P.W.1 and exhibited Exs P1 to P20. On the side of the respondent,

the second respondent was examined as R.W.1 and Exs R1 to R5 were marked. After scanning the evidence both oral and documentary, the

learned Rent Controller had allowed R.C.O.P.No.44 of 2004 thereby ordering eviction giving two months time for the tenants to vacate and hand

over the vacant possession of the petition schedule building. Aggrieved by the findings of the learned Rent Controller in R.C.O.P. No. 44 of 2004,

the tenants have preferred RCA No. 893 of 2004 before the learned Rent Control Appellate Authority (VIII Judge), Court of Small Causes,

Chennai. After giving due deliberation to the submissions made by the learned Counsel on both sides and after going through the order of the

learned Rent Controller in R.C.O.P. No. 44 of 2004, the learned Rent Control Appellate Authority, finding no material to interfere with the

findings of the learned Rent Controller has dismissed R.C.A. No. 893 of 2004 which necessitated the tenant to approach this Court by way of this

revision.

Heard the learned Counsel appearing for the revision petitioners as well as the learned Counsel appearing for the respondents and considered

their respective submissions.

The learned Counsel appearing for the revision petitioner relying on a decision reported in V. Krishna Mudaliar Vs. Lakshmi Ammal, would

contend that once the landlord had accepted the arrears of rent then the default in payment of rent by the tenant cannot be construed as wilful. The

facts of the said ratio are that the landlord had filed a petition u/s 10(2)(1) of the Act on the ground that the tenant had committed wilful default in

payment of rent. The Rent Controller had allowed the petition, the learned Rent Control Appellate Authority also upheld the findings of the learned

Rent Controller, the revision filed before the High Court was also dismissed. Hence Civil Appeal was preferred before the Honourable Apex

Court. It was contended on behalf of the respondent that the respondent had purchased the premises in dispute on March 30, 1977 and the

appellant was in occupation of the said premises on a monthly rent of Rs. 60/- and the respondent filed a suit for declaration and injunction against

the appellant alleging that after the purchase of the property by him, the appellant surrendered the possession of the premises to him but later on

trespassed into the property. The appellant, in the suit, contended that he was a tenant. Accepting the contention of the defendant, the suit was

dismissed. The appeal preferred against the said order was also dismissed. Thereafter, the respondent issued a notice demanding arrears of rent

for the period from 30.3.1977 to 12.8.1981 u/s 10(2)(1). The only contention raised before the Honourable Apex Court on behalf of the appellant

is that the default in payment of rent by the appellant was not wilful and as such the landlord was not entitled to the benefit of the proviso to Section

10(2)(1) of the Act. It was further argued on behalf of the appellant/tenant that the rent controller should have given time not exceeding 15 days to

pay or tender the rent due by him to the landlord. Accepting the contention of the appellant/tenant, it was held by the Honourable Apex Court as

follows:

We see force in the contention of the learned Counsel. Despite the fact that the appellant was tenant of the property in dispute under the earlier

owner, the respondent dragged the appellant to the civil Court on the allegations that he was a trespasser. The civil Court decided the controversy

in favour of the appellant and held that he was a tenant in the property purchased by the respondent. In reply to the notice dated August 12, 1981

the appellant stated that he could not pay the rent because the respondent never accepted him as his tenant and refused to accept the rent till the

proceedings were finally decided by the civil Courts. In the reply it was further stated that the non-payment of rent was not due to any fault on the

part of the appellant and he was prepared to pay the same in easy instalments. We are of the view that the courts below have not taken into

consideration these facts in the right perspective. Keeping in view the peculiar facts and circumstances of this case, we hold that the default in the

payment of rent on the part of the appellant was not wilful.

The facts of the above said ratio will not be applicable to the present facts of the case. It is not the case of the tenant herein that the landlord at

any point of time had refused to treat him as a tenant. The respondent/landlord''s consistent case through out is that the tenant is in supine indifferent

in paying the rent to him/landlord. It is the admitted case of the landlord that about 13 months rent i.e., for the period from November 2002 to

November 2003, was paid only by the tenant/revision petitioner herein as per the order passed in M.P. No. 614 of 2002, a petition filed by the

landlord u/s 11(4) of the Act. Even after the filing of the present R.C.O.P. No. 44 of 2004, the tenant had committed default in payment of rent for

5 months viz., from July 2008 to December 2008 which he had paid only on 9.1.2009, according to the learned Counsel for the respondents

herein.

The learned Counsel appearing for the respondents relying on a decision reported in A.P. Swamy v. V. Kunjithapadam 1994(2) L.W. 661

would contend that even if the tenant commits default in payment of rent during the pendency of the eviction proceedings, that default should be

construed as wilful. The relevant observation in the said ratio runs as follows:

Further it remains to be seen that during the pendency of the eviction petition the tenant failed to pay the rent to the landlord. The landlord filed two

petitions u/s 11(4) of the Act. In pursuance of the orders passed in the said petition, the tenant paid a sum of Rs. 15,000/- and Rs. 4,000/-

respectively on 6.10.1989 and 2.5.1990 respectively. u/s 11(1) of the Act, the tenant should not only pay the arrears of rent, but also should pay

the rent regularly every month during the pendency of the eviction proceedings. In any event, there is no evidence on the side of the tenant to show

that the rent at the rate of Rs. 1,000/- was paid between July 1988 and February 1989. Therefore, the tenant is liable to be evicted u/s 10(2)(i) of

the Act.

The same view was reiterated in B. Anraj Pipada v. V. Umayal 1998(2) M.L.K. 521 wherein the dictum reads as follows:

When the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every

month at least after the initiation of the proceedings. When the tenant has failed to pay the rent regularly even during the pendency of the

proceedings, then there is no doubt that his conduct in paying the rent as he likes will amount to wilful default.

In the above said decision, this Court referred the decision reported in Sundaram Steel Co. Ltd. v. Lakshmi 1997(2) L.W. 501 . For the same

proposition of law, the learned Counsel appearing for the respondents would rely on a decision reported in The Nilgiris Co-operative Marketing

Society Vs. C.T. Uthandi, wherein the ratio decidenti is mere payment of rent by the tenant could not absolve him of the disqualification he had

suffered already. The dictum reads as follows: It is no doubt true that in all those cases viz., Abdul Hameed v. M. Sultan Abdul Kader 1996

T.L.N.J. 339, A.M.A. Jabbar v. T.S. Abdur Bari 1997(2) L.W. 616 and V. Krishna Mudaliar Vs. Lakshmi Ammal, , it was held that if the tenant

paid the rent, which was in arrears, immediately after the filing of the eviction petition at any time before the first hearing, it cannot be said that the

tenant has committed a wilful default. I have pursued the Judgments very carefully. In all those cases, I find that the explanation offered by the

tenant for more paying the rent earlier was found satisfactory and in the context of that explanation and in the light of the payment of the arrears of

rent as stated above, the Court held that there was no wilful default on the part of the tenant, on paying the rent immediately after the filing of the

Rent Control petition. I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any

more in the occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for

non payment of the same as and when it became due. There cannot be any hard and fast rule to that effect, because, if that is the position of law,

then there can never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent,

suddenly becoming wiser and paying the rent after the Rent Control petition was filed. That does not appear to be the trend of the decisions

referred to above.

The same principle was also reiterated in the recent Judgment of this Court in V. Kannadasan v. K. Swaminatha Pathar 2007 (2) CTC 127 in

the following lines.

In Vasantha Leela Vs. N. Vadivelu Chettiar, it has been held as follows:

...Therefore, it is clear from the above circumstances that the tenant ought to have been diligent in payment of rent as proceedings have been

pending between the parties with reference to the property and his eviction from the property. The tenant ought to have been careful and

scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations

that went on between the parties and default committed by the tenant has to be construed as wilful default. The tenant was aware of the legal

consequences of his omission to pay rent. Therefore, he ought to have been more careful. In spite of it he has not chosen to pay the rent which

would only indicate that he has been supinely indifferent and callous in attitude. Therefore, any default committed by the tenant in this context can

be nothing but wilful default within the meaning of the Act....

The above said ratio decidentis relied on by the learned Counsel for the respondents squarely applies to the present facts of the case in all four

corners. Further unless it is shown before this Court that the Courts below have rendered their findings without considering materials placed before

them and the findings are perverse in nature, this Court cannot interfere with a concurrent findings of the Courts below. Under such circumstances,

I do not find any reason to interfere with the findings of the learned Rent Control Appellate Authority in R.C.A. No. 893 of 2004 on the file of VIII

Judge, Court of Small Causes, Chennai which is neither illegal nor infirm to warrant interference from this Court.

In fine, this civil revision petition is dismissed confirming the Judgement of the learned Rent Control Appellate Authority in RCA No. 893 of

2004 on the file of VIII Judge, Court of Small Causes, Chennai. Time for vacating the premises by the tenant is four months from today. No costs.

The revision petitioners are directed to file an affidavit of undertaking within ten days.