S.R. Sivasubramaniam and Others vs N. Rajagopal

K. Govindarajan, J.—The petitioners/landlords who succeeded before the Rent Controller and failed before the Appellate Authority have

filed the above revision.

The landlords filed the petition in R.C.O.P. No. 24 of 1992 on the file of the Rent Controller/learned District Munsif, Erode for eviction against

the respondent/tenant under Sections 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. According to the

landlords, the tenant failed to pay the rent for the period from December, 1991 to March, 1992, in spite of the notice issued under Ex.A-1, dated

18.3.1992 and so such default is nothing but wilful. With respect to owners'' occupation, the landlord''s case was that they require the building for

the purpose of the business of the sons of the first and sixth petitioners. The tenant had contested the petition by filing counter. In the counter it is

stated that before filing the petition the sixth petitioner had been collecting the rent from the respondent/tenant and also handing over the receipt for

the same. So, the respondent had been paying the rent as and when he came for receiving the rent. But for the past two years, none of the

petitioners had turned up to receive the rent, and so the respondent had been sending the same through employees, to be paid at Sakthi Road Oil

Mill belonging to the petitioners. On some occasions for non-presence of the petitioners, the amount was brought back and the tenant used to

remit the said amount as and when the petitioners found available. With respect to the default period in question, it is sated that on receipt of

registered notice dated 18.3.1992 the respondent went and remitted the arrears of rent for December, 1991 and January, 1992 and the

respondent informed that he would remit the rent for February, 1992 after some time, which was readily accepted by the petitioners.

The Rent Controller accepting the case of the landlords allowed the petition and ordered eviction. Aggrieved, the tenant filed appeal in R.C.A.

No. 9 of 1993 on the file of the Appellate Authority/learned Sub Judge, Erode, who rejected the same holding that the tenant has not committed

any wilful default in payment of rent, and the requirement of the premises in question for the owners'' occupation cannot be a bona fide one. On the

basis of the said findings, the Appellate Authority allowed the appeal and set aside the order of eviction. Still aggrieved, the landlords have filed the

above revision.

The learned Counsel appearing for the petitioners/landlords has not seriously challenged the order of the Appellate Authority with respect to the

finding that the requirement of the landlords of the premises for their sons is not a bona fide one and so I am not dealing with the same.

According to the landlords, the monthly rent is Rs. 700 for the premises in question, and the tenant has not paid the same for the period from

December, 1991 to March, 1992. Though the notice under Ex.A-1 was issued on 18.3.1992, the tenant had paid the rent for the month of

December, 1991 and January, 1992, and receipt was passed on marked as Ex.B-2 dated 28.3.1992. Admittedly, the rent was not paid for the

month of February, 1992 and the same was paid only on 4.7.1992, after filing the eviction petition. The learned Counsel for the landlords relying

on this fact has submitted that in spite of notice under Ex.A-1, the rent was not paid within two months and so the Appellate Authority should have

confirmed the order of eviction on the legal presumption under Explanation to Section 10(2)(i) of the said Act, that the tenant has committed wilful

default in payment of rent. But the learned Counsel appearing for the respondent/tenant has submitted that the notice issued under Ex.A-1 cannot

be construed as notice under the Explanation to Section 10(2)(i) of the Act and so the Appellate Authority is correct in not applying the

Explanation to Section 10(2)(i) of the Act of the purpose of such presumption.

To appreciate this submission, it is useful to extract the said relevant provision, viz., Explanation to Section 10(2)(i) of the said Act, which is as

follows:

Explanation: For the purpose of this subsection, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment

or tender of rent continues after the issue of two month''s notice by the landlord claiming the rent.

According to the said section, if the tenant defaults in payment of rent or tender rent, it shall be construed as wilful, if it continues even after the

issue of two month''s notice by the landlord claiming the rent.

Now it has to be decided whether Ex.A-1 is in accordance with the Explanation to Section 10(2) (i) of the Act.

Section 10(2) of the Act does not compel the landlord to issue notice for the purpose of establishing the default as wilful. The Explanation to

Section 10(2) (i) of the Act states that if, even after issue of two months'' notice the tenant continued to fail to pay the rent then it should be

presumed that such a default will be wilful. It is not in dispute that under Ex. A-1 the petitioners/landlords informed the respondent/tenant about the

payment of rent. Though for the months of December, 1991 and January, 1992, the arrears of rent was paid within the period of two months, i.e.,

28.3.1992, the rent for the month of February, 1992 was not paid within the said period.

To overcome the legal presumption, the learned Counsel for the tenant/respondent has submitted that the notice Ex.A-1 cannot be construed as

a notice under Explanation to Section 10(2)(i) of the Act. As stated earlier, the learned Counsel has submitted that in the notice under the

explanation, the tenant should be asked to pay the rent within two months, but under Ex.A-1 the landlords had demanded rent immediately, and

the two months period has not been mentioned.

The Explanation to Section 10(2)(i) of the Act came up for consideration before the Apex Court and the Apex Court had expressed its view

about the said provision in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , which is as follows:

As we read the explanation it does not at all take away the mandatory duty cast on the controller in the proviso to decide if a default is wilful or

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

compelling reasons, the controller or the court can certainly presume that the default is wilful and order his eviction straightway. We are unable to

accept the view that whether two months'' notice for payment of rent is given or not, it will always be open to the controller, under the proviso to

determine the question of wilful default because that would render the very object of explanation otiose and nugatory. We express our view in the

matter in the following terms:

(1) Where no notice is given by the landlord in terms of the explanation, the Controller, having regard to the four conditions spelt out by us has the

undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions

mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus pendentiate by

giving a reasonable time, which the statue puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have

to be rejected.

(2) If the landlord chooses to give two months'' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated

time of the notice then the controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would

itself be presumed to be wilful default unless the shows that he was prevented by sufficient cause or circumstances beyond his control in honouring

the notice sent by the landlord.

From a reading of the abovesaid views of the Supreme Court, I have to opine, in the notice issued under the explanation to Section 10(2)(i) of

the Act, two months time must be stipulated. To come to such conclusion I seek support from the words in the portion of the said decision. The

words used are ''two months notice'' and ''within the stipulated time of the notice''. So, to rely on a notice by the landlord for the purpose of

presumption regarding wilfulness, it should prescribe two months'' period, though not the provision, viz., Explanation to Section 10(2)(i) of the Act

is mentioned. In the present case such time is not stipulated and so it cannot be said that Ex.A-1 was issued under the Explanation to Section 10(2)

(i) of the Act, as suggested by the learned Counsel for the petitioners.

On the basis of Ex.A-1 issued by the petitioners, the authorities cannot presume straightway that the default of rent for the month of February,

1992 is wilful, in view of the fact that the petition filed by the petitioners for eviction is even before the two months. Support is also gained for this

view from the decision reported in Karra Kondamma Vs. Karra Nagamma, . While dealing with the similar facts, the learned Judge has held as

follows:

There is force in the above contention of the learned Counsel for the respondent/tenant. In that instant case, as the landlord failed to comply with

the provisions of the explanation to Section 10(2) of the Act, he is not entitled to the benefit of presumption of wilful default in payment of rent by

the tenant. In the instant case, the landlord has filed a petition for eviction of the tenant before the expiry of the period of two months for the tenant

to tender the arrears of rent. As such, the landlord has not complied with the provisions contained in explanation to Section 10(2) of the Act, and

he is not entitled for the benefit of presumption of wilful default, on the part of the tenant. The discretion of the Rent Controller to condone the

delay in payment of arrears of rent by the tenant is much wider than when a notice issued in accordance with the Explanation to Section 10(2) of

the Act.

In this case, the petitioners issued Ex.A-1 notice on 18.3.1992 and the petition for eviction filed on 30.4.1992 itself without waiting for the said

period of two months. So, even on this ground the petitioner cannot come forward with the plea that the notice Ex.A-1 was issued under the

Explanation to Section 10(2)(i) of the Act.

Now, the issue to be decided is whether the tenant has committed wilful default in payment of rent de hors notice under Ex.A-1. It is the case

of the tenant that he could not pay the rent for the month of February, 1992 and time was asked to pay the same which was readily accepted by

the petitioners. The arrears of rent for February and March, 1992 was paid on 4.7.1992 and 18.7.1992 respectively. He has also explained the

same in his evidence. The Rent Controller, taking into consideration of the default during 1983 and 1990 for certain months, has come to the

conclusion that the non-payment of rent for February, 1992 is nothing but wilful. But the Rent Controller failed to appreciate that a default itself

cannot be construed as wilful default. In the present case though there is a default for the month of February, 1992, the tenant has explained the

reason for the same. The Rent Controller failed in his duty to appreciate the said reason before concluding that the default was wilful. The

Appellate Authority taking into consideration of the fact that the arrears of rent for the month of February and March, 1992 was received by the

petitioners without any protest, found that the tenant has not committed any wilful default in payment of rent. The tenant has explained the reason

for non-payment of arrears of rent for February and March, 1992. It is also factually found based on evidence that the landlords used to receive

the rent periodically.

In view of the factual findings, I am not inclined to interfere with the order of the Appellate Authority. Accordingly, this revision is dismissed.

No costs.