Selvaraj vs K. Mumtaz Begum

The above civil revision petition is by the tenant and is directed against the order of eviction passed on him by both the Courts below on the

ground of wilful default in the payment of rent and for affording additional accommodation to the landladies.

The facts giving rise to the present revision briefly are as follows : Eviction proceedings relate to that portion of door No. 196 in Market Road,

Arni, which is in the occupation of the petitioner and in which he is running a hotel. The premises belonged to the respondents-landladies, who

sought eviction against the petitioner under Ss. 10(2)(1)(iii) and 10(3)(c) of the TamiI Nadu Buildings (Lease and Rent Control) Act (hereinafter

referred to as the Act), on the averment that the petitioner committed wilful default in the payment of rent from2l-3-1981 to 1-12-1981 and also

that they needed the premises as additional accommodation for the business run by their husbands under the name and style of M. M. Electricals in

the back portion of the same door number. On the ground of wilful default, it was averred that the respondents purchased the property on 21-3-

1981, and soon after sent Ex. B-1 notice to the petitioner asking him to pay the arrears of rent and also to hand over possession since the same

was needed for them, that though the petitioner received Ex. B-1 notice, he did not pay rent; nor did he choose to give any reply, that, therefore,

the respondents on 23-7-1981, sent another notice under Ex. B-2 to which the petitioner sent a reply under Ex. A-7 admitting the receipt of the

earlier notice under Ex. B-1 and that in spite of the notices and repeated requests the petitioner neither paid the rent nor Chose to vacate and that,

therefore the respondents were forced to file R.C.O. 32 of 1981 seeking eviction of the petitioner on both the grounds and after the above petition

was filed, the petitioner paid the rent in lump sum to the respondents'' counsel and that, therefore, there had been wilful default, from 21-3-1981 to

1-12-1981. On the ground of additional accommodation, it was averred that the portion of door No. 196 wherein the respondents'' husbands

were carrying on business was insufficient for their legitimate needs and they were not able to stock their goods in the premises, and that, therefore,

the petition premises were needed by way of additional accommodation.

The petitioner resisted the above action contending that when he received Ex. B-1 notice, he sent the accrued rent to the previous landlord,

Nagendra Jain, by money order and also sent him a notice under Ex. B-3, that Nagendra Jain refused to receive the money order and thereafter,

the petitioner had the rent deposited in Indian Overseas Bank, which facts were mentioned in the reply he sent under Ex. A-7 to the respondents

and that after the filing of R.C.O.P. 32 of 1981, the amounts so deposited in the Indian Overseas Bank were withdrawn and paid to the

respondents'' counsel. Regarding additional accommodation, the petitioner contended that the demand was mala fide and there was no real need at

all for the husbands of the respondents and that, since he had been in the premises for forty years and more, the relative hardship that would be

caused to him was more than the benefit that could possibly accrue to the husbands of the respondents.

Before the learned Rent Controller, the respondents examined the husband of the first respondent as PW 1 and had Exs. A1 to A- 16 marked

on their side. The petitioner examined himself as R.W. 1 and examined R.W. 2 on his side and had Exs. B-1 to B-7 marked. Exs. C-1 to C-3

being the report and plans of the Commissioner appointed by Court were also marked. Learned Rent Controller, on a consideration of the

materials placed before him, found that there had been default in the payment of rent, that the default was wilful and also found that the additional

accommodation sought for by the respondents for the business of their husbands was real and the relative hardship that could possibly be caused

to the petitioner would outweigh the relative benefit that could accrue to the respondents, and ordered eviction of the petitioner both under S.

10(2)(1)(iii) and under S. 10(3)(c) of the Act. Learned Appellate Authority in the appeal preferred by the petitioner in R.C.A. 30 of 1983

concurred with the Courts below on both the findings and confirmed the order of eviction passed against the petitioner. Hence, the present revision

by the aggrieved tenant.

Thiru D. Krishnan, learned counsel for the petitioner, on the aspect of wilful default, submitted that after the pronouncement of the Supreme

Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , the interpretation that had to be put on the word ''wilful'' had undergone

radical change and, unless, the respondents were able to prove that the conduct of the petitioner amounted to callousness and supine indifference

and total disregard to the consequences of his act, the element of wilfulness; in the default could not be put against him. On facts, learned counsel

submitted that as soon as the petitioner received Ex. B-1, he having been incapacitated due to a tragedy in the family, had immediately sent the rent

to the previous landlord, Nagendra Jain, by money order and had also sent Ex. B-3 noticed to Nagendra Jain. After the money order was refused,

the petitioner had deposited the same in Canara Bank (not in Indian Overseas Bank, as contended by him in his counter), as evident from the pass

book Ex. B-5. This amount had been withdrawn and paid to the respondents'' counsel. on the very first day of the hearing of the R.C.O.P. 32 of

1981. The petitioner was not aware of the sale in favour of the respondents and hence in that background the conduct of the petitioner could not

be said to amount to supine indifference or callousness making the default wilful. On the question of additional accommodation, the learned counsel

submitted that it was not open to the respondents merely to assert that additional accommodation was necessary but that the circumstances making

out the requirements should also be placed before Court. Learned counsel referred to certain decisions to which I shall advert later. It was also

submitted that subsequent to the disposal of the appeal before the appellate authority, the respondents had taken necessary possession through

Court of premises No. 46 C situated in the same street belonging to them, which had till then been in the possession of tenants. The respondents

could, therefore, accommodate the business of their husbands in the premises in 46-C and the petitioner, therefore, was not liable to be evicted

under S. 10(3)(c) of the Act.

Per contra, Mr. R. Krishnamurthi,, learned Advocate General, submitted that the, petitioner had been informed about the sale even prior to the

sale in favour of the respondent and even after the sale, as soon as the petitioner received Ex. B-1, there was no justification on his part to send

money order to Nagendra Jain, which could not be taken as a tender to the respondents and the further deposit of the rent in his own account in

Canara Bank would also not amount to compliance of the statutory requirements that all these acts were made to prevent the respondents from

collecting the rent and that, therefore, the default was wilful and both the Courts below had rightly held it to be so. On the question of additional

accommodation, learned Advocate General contended that the decisions referred to by the learned counsel for the petitioner were distinguishable

on facts and the contention that'' the respondents should shift the business to No. 46-C situate in the same street could not be accepted, since the

present petition was under S. 10(3)(c) of the Act, seeking additional accommodation.

The question that arises for consideration is whether the order of the learned appellate authority suffers from any illegality or perversity calling for

interference by this Court under its revisional jurisdiction.

Taking the case of the respondents under S. 10(2)(1)(iii) of the Act, it is seen that the petitioner has in fact received the notice sent by the

respondents on 6-6-1981, viz. Ex. B1. Therein, the respondents have stated that they had purchased the petitioner''s premises and that the

petitioner was aware of the above purchase by the respondents. There is a demand for rent and also a demand for the premises. In Ex. A-8, which

is a reply sent by Nagendra Jain to the petitioner to Ex. B-3, notice, Nagendra Jain has stated that the petitioner, even on the date of the sale, viz.

21-3-1981, was informed by Nagendra Jain himself that the premises had been sold to the respondents and that the petitioner pretending

ignorance of the above facts had sent Ex. A-6 to Nagendra Jain. In Ex. A-8, Nagendra Jain had asked the petitioner to pay the rent to the

respondents. In spite of the receipt of Ex. A-8, the petitioner had not chosen to send the rent to the respondents. Instead, the petitioner has chosen

to have the same deposited in his own account in Canara Bank, under Ex. B-5. Sending the rent 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. On the contrary, it is obvious that the petitioner, being fully

aware of the fact even on 21-3-1981 that the premises had been sold to the respondents had refused to pay or tender the rent to the respondents.

The receipt of Ex. B-1 notice is admitted in Ex. A 7. The petitioner, therefore, cannot pretend ignorance of the sale. After having come to know

that the respondents had purchased the property, the petitioner had to send the rent only to the respondents, and, if the same was refused, he

should h*e followed it up as required of him under the Act. The conduct of the petitioner clearly indicates that he was determined not to pay the

rent to the respondents, even after coming to know that the respondents had purchased the property. This conduct amounts to supine indifference

and callousness as indicated in the decision of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, . Both the

Courts below, therefore, have rightly held that the default committed by the petitioner is a wilful default entitling the respondents to succeed in an

action for eviction against him.

On the ground under S. 10(3)(c) of the Act, learned counsel for the petitioner relied upon a decision of this Court, rendered by Ratnam, J. in

Annakilli Animal v. H. C. Hussain, (1984) 97 Mad LW 116, wherein the learned Judge has observed, on the basis of the facts in that particular

case, that, in the absence of any evidence to show that the business of the landlord had expanded, necessitating additional accommodation, the

same could not be granted. In that case, the facts indicated that the landlord was seeking additional accommodation merely for the purpose of

securing better access to the main road. In the instant case, however, even ''in the petition filed for eviction, it is clearly stated that the husbands of

the respondents are doing business in the rear portion of the building measuring 7-1/2 X 9-1/4 and that it was hardly enough for their legitimate

needs and as the business had since grown they were not able to stock their goods. The fact that the husbands of the respondents are carrying on

business in the rear portion of the building is not denied by the petitioner. The need for additional accommodation has been reiterated by P.W. 1 in

his evidence by stating that the pipes necessary for electrical business are long and they are not able to keep the same in the present premises and

some more space is therefore necessary for their stock. In fact, the petitioner as R.W. 1, has also admitted that the respondents might need the

petition premises as additional accommodation, but added a rider to it by contending that the relative hardship that could be caused by his eviction

would be more to him than the benefit of the landlord. An Advocate-Commissioner had been appointed and he had submitted the plans and

report, which have been marked as Exs. C-1 to C-3. It is seen that the petitioner is carrying on his hotel business in that portion of door No. 196,

that is in his possession and also in a portion of door No. 197 which is adjacent to it. Different rooms are being used for different purposes for

running the hotel business. The Advocate-Commissioner has finally stated that the petition premises will .be forming roughly one-third of the entire

door No. 196. The respondents, however, are landladies whose husbands are carrying on business in the very same premises. The petitioner will

still be left with a substantial portion for housing his hotel. Both the Courts below have elaborately discussed this question of relative hardship. The

petition premises is just one-fifth of the total area occupied by the petitioner for his hotel business in doors Nos. 196 and 197. The petitioner,

therefore, would be losing only one-fifth of the total area he is now using for his hotel business. The petitioner has also admitted that there is

absolutely no ill-feeling between himself and the respondents and that there was no demand at any time for enhanced rent in the background of

these facts, both the Courts below have rightly held that the relative hardship that was bound to be caused to the petitioner would not out-weigh

the relative hardship that would accrue to the respondents.

Regarding the contention that subsequent to the filing of the R.C.O.P. the respondents had obtained possession of nonresidential premises in

door No. 46-C situated in the same street and that, therefore, the requirements of the respondents for additional accommodation, even if it had

existed at the commencement of the proceedings, had not been proved to exist now when the civil revision petition was being heard. It is seen that

door No. 4 6-C, though it is situate in , the same road, is away from the petition premises. The respondents'' husbands are carrying on business in

one portion of door No. 196, if any other portion of door No. 196 had become vacant to enable the respondents to use the same as additional

accommodation for their business the contention of the petitioner could be accepted. However, door No. 46-C is a different building and is away

from the present premises where the respondents reside and are carrying on business. The respondents'' husbands cannot be forced to shift their

business from door No. 196 to door No. 46-C, though in the same street.

Each of S. 10(3)(a)(iii) and S. 10(3)(c) of the Act would come into operation under different set of circumstances. The causes of action

contemplated by the two sub-sections are different and mutually exclusive. In the instant case, the respondents cannot be denied eviction under S.

10(3)(c) of the Act, merely because they have come into possession, subsequent to the filing of this proceeding, of different premises, which might

disentitle them for possession of the petition premises under S. 10(3)(a)(iii) of the Act. The fact that the respondents had come into possession of

door No. 46-C, therefore, would not be a relevant consideration in an action under S, 10(3)(c) of the Act, I am unable to accept the contention of

the learned counsel for the petitioner to the contrary.

In the result, the revision petition fails and is dismissed. No costs.

Petition dismissed.