Rathna Bai and Others vs K.S. Mani

M. Thanikachalam, J.—The tenants, aggrieved by the order of eviction in R.C.O.P.No.2552 of 1993, have preferred C.R.P.No.3074 of

2001 and also aggrieved by the dismissal of R.C.O.P.No.352 of 1993, in refusing to give permission to deposit the rent amount by the courts

below, preferred C.R.P.No.3075 of 2001.

The landlord/respondent had filed a petition, for the eviction of the tenants in R.C.O.P.no.2552/1993, on the ground that he had committed

willful default, in payment of rent and therefore, such a tenant should not be allowed to remain in possession of the demised premises as tenants.

The tenant, opposing the application, had also filed a petition in R.C.O.P.No.352/1993 u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent

Control) Act, hereinafter called ''the Act'', seeking permission to deposit the rent.

The Rent Controller by his common order dated 29.4.1997 held, that the tenants had committed willful default, in payment of rent, from March

1992 and such tenants are not entitled to seek permission, to deposit the rent. In this view, ordering eviction in the petition filed by the landlord,

dismissed the petition filed by the tenants, which are under challenge in these revisions.

Heard the learned counsel for the petitioner, Mr. R. Subramanian and the learned counsel for the respondent, Mr. P. Jagannathan.

The learned counsel for the revision petitioners submits, that the case of the tenants comes within the scope of Section 7 of the Act and

therefore, for the alleged non payment of rent, the tenants cannot be ordered to be evicted.

On the other hand, it is the contention of the learned counsel for the respondent, that the case will not come within the ambit of Section 7 of the

Act, which should follow, question of adjusting the rent collected by the landlord would not arise and in this view Section 7 of the Act is not

attracted and the resultant conclusion should be as held by the courts below concurrently, that the tenants had committed willful default and in this

view, the order of eviction should stand.

In R.C.O.P.No.2659/1985, for this demised premises as per the order dated 22.8.1988, fair rent was fixed by the Court of Small Causes at

Madras. That order became final. According to the landlord, on 15.1.1989, the tenants had agreed to pay a monthly rent of Rs.600/- and

therefore, the agreed rent between the parties, on the date of filing of the petition is Rs.600/- per month. It is also the further case of the landlord,

that in pursuance of the letter dated 15.1.1989, a new agreement, including the above rent, came into existence between the parties from

1.1.1990. It is further alleged in the petition, that the tenant was paying the rent at the rate of Rs.600/- per month up to February 1992 and

thereafter, though agreed to pay enhanced rent of Rs.900/- from 1.3.1992, failed even to pay even Rs.600/- per month, whereas he offered to pay

only Rs.450/- from March 1992. In this view, labeling the tenants as willful defaulter, a petition was filed for eviction. The tenant, seeking

permission to deposit the rent, at the rate of Rs.450/- p.m., filed a petition as aforementioned u/s 8(5) of the Rent Control Act. Admittedly, till the

dispute had arisen between the parties, the tenant was paying the rent at the rate of Rs.600/- p.m. and after the dispute, he was paying or

depositing the rent, as the case may be, only at the rate of Rs.450/- p.m.

The learned counsel for the revision petitioners submits, that the landlord has no right, to refix the fair rent, after the Court had fixed the fair rent

and in this view, the claim of the landlord at the rate of Rs.600/- per month is against the law. It is the further submission of the learned counsel for

the petitioners that the landlord had collected the rent at the rate of Rs.600/- per month, for certain period and if that amount is adjusted for the

alleged periods of non payment of rent, there cannot be any arrears, which will relieve the tenants from the alleged willful default. Therefore, under

the above circumstances of the case, we have to see whether the landlord is entitled to enter into an agreement, with the tenant, after the fixation of

fair rent, enhancing the rent, without any improvement to the building. If the answer is ''yes'', it should be held the tenants had committed willful

default. If the answer is ''no'', then in view of the admitted fact that the landlord had collected excess amount in the sense more than Rs.450/-, that

amount has to be adjusted, as rightly claimed by the revision petitioners, u/s 7 of the Act. No other point was urged except the above said point.

Section 7(1)(a) of the Act reads:

Where the Controller has fixed or refixed the fair rent of a building-

(a) the landlord shall not claim, receive or stipulate for the payment of (i) any premium or other like sum in addition to such fair rent, or (ii) save as

provided in Section 5 or 6, anything in excess of such fair rent:

Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month''s rent by way of advance.

Section 7(b) reads:

(b) save as provided in clause (a) any premium or other like sum or any rent paid in addition to, or in excess of, such fair rent, whether before or

after the date of the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after the date of

such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shall be otherwise

adjusted by the landlord.

The Hon''ble Supreme Court had the occasion to consider the scope of Section 7 in K. Narasimha Rao v. T.M. Nasimuddin Ahmed 1996 (2)

MLJ 49 wherein it is held "" the character of the excess amount, undoubtedly, is that it is the tenant''s money in the hands of the landlord for return

to the tenant or for adjustment towards the dues of the tenant at the tenant''s option. In this view, it is held further that the Act requires that the

excess amount has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust

the excess amount. Therefore, if the landlord had collected excess amount, then only question of adjustment does arise for consideration. For that,

in this case, we have to see whether the rent claimed by the landlord, which was agreed by the tenant at Rs.600/- per month, is permissible. By

going though Section 7 carefully, I am unable to see any provision, barring the landlord from fixing mutual agreed rent, after the fixation of fair rent.

The section says, the landlord shall not claim, receive or stipulate for the payment of any premium or other like sum in addition to such fair rent,

thereby not prescribing any mutual agreed rent, between the parties.

True, Section 5 contemplates when the fair rent of a building has been fixed, under this Act, no further increase in such fair rent shall be

permissible, except in cases where some addition, improvement or alteration has been carried out, at the landlord''s expense. Here also, fixation of

fair rent, again by the Court, is in a way prevented, after the fixation of fair rent, unless any addition is made or improvement is made to the

demised premises and the Section does not say that the parties are prevented from entering into an agreement, afresh fixing the rent, mutually

agreed. It does not says so further, if such a mutual agreement had reached, that is null and void or violative of any Section. After all this Act gives

protection not only to the tenant, but also to the landlord and if the parties have entered into an agreement, that should be honoured, if it is not

violated any of the provisions of the Act. For these reasons, I am of the considered opinion, that the contention of the learned counsel for the

revision petitioners the landlord is barred from claiming rent at the rate of Rs.600/- after the fixation of fair rent at Rs.450/- cannot be

countenanced. Admittedly, and as established, there was an agreement between the parties and the tenants were paying the rent at the rate of

Rs.600/- per month, after the fixation of fair rent at the rate of Rs.450/-, not on the basis of the fixation of fair rent, but on the basis of the mutual

agreement, under which the landlord had agreed not to question the fixation of fair rent, by way of an appeal, thereby saving the time of the tenant

also, which could be seen from the letter and the agreement.

The original tenant viz., father of R.W.1 had written a letter to the landlord on 15.12.1989, agreeing to pay a monthly rent of Rs.600/- as

admitted by R.W.1. It is also admitted by R.W.1, in pursuance of the same, Ex.P.10-agreement came into existence, fixing the rent at Rs.600/-

per month, from the said date onwards. It is also admitted by R.W.1 that they have been paying the rent at the rate of Rs.600/- till 1992 i.e.

roughly for two years. The recital in the document would go to show, that this rent was agreed between the parties, to avoid further fixation of fair

rent in the appeal, if possible. This kind of agreement between the parties is not at all prohibited under the Act and therefore, the amount fixed by

consent, as rent, at the rate of Rs.600/-, cannot be termed as excess amount, coming within the scope of Section 7 of the Act, thereby entitling the

tenants, to ask for adjustment at later stage, refuting the agreement, without any valid reason.

Under the facts and circumstances of the case, I conclude, that the landlord has not collected any excess amount and the agreed rent at the

rate of Rs.600/- per month cannot be termed, as violative of the provision of the Act. Admittedly, for the period claimed in the petition, the tenants

have not paid the rent at the rate of Rs.600/- and the non payment of rent certainly would amount to willful default, as rightly held by the courts

below and in this view, the permission sought for by the tenants to deposit the rent at the rate of Rs.450/- is also not acceptable. The courts below,

considering the facts and circumstances, based on evidence, recorded a fact finding concurrently, which is not liable to be disturbed by this Court,

under the revisional jurisdiction, whereas it requires confirmation.

For the foregoing reasons, I find no merits in both the C.R.Ps. and they deserve dismissal and they are accordingly dismissed, with costs.