IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (NPD)No.2632 of 2000
P.M.S.Muhammad Suhail ... Petitioner.
-Vs-
Subramanyan. ... Respondent.
Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, against the judgment and decree
dated 20.4.1999 and made in R.C.A.No.68 of 1991 on the file of the Rent
Control Appellate Authority (Sub Court), Tuticorin, confirming the order and
decretal order dated 22.10.1991 made in R.C.O.P.No.5 of 1990 on the file of
the Rent Control (District Munsif) Court, Srivaikundam.
!For petitioner : Mr.M.I.Meera Sahib.
^For respondent : Mr.J.R.Prabhakaran
:O R D E R
The revision petitioner is the unsuccessful landlord before the Rent
Controller and the Rent Control Appellate Authority in getting an order of
eviction on the ground of wilful default in payment of rent and own use and
occupation.
2. The revision petitioner/landlord filed the Rent Control Original
Petition for eviction against the respondent/tenant in respect of the petition
premises bearing door Nos.20 and 20A, Arampalli Street, Kayalpatnam stating
that he is the owner of the petition premises and also adjacent shop bearing
door No.19 managed by his paternal uncle M.S. Sheik Shamsudeen, who brought
him up, and his paternal uncle as his guardian was collecting the rent. The
res pondent herein is the tenant in respect of the petition premies on a
monthly rent of Rs.110/- and since he defaulted in payment of rent from
September, 1988 to February, 1989, a letter was sent by his uncle by
registered post to the respondent herein to pay the arrears of rent from
September, 1988 to February, 1989 in the Bank of Madura Ltd., Kayalpatnam in
the account of C/D No.153 within three days and further requested him to pay
the future rental amount in the said account on or before 5th of every English
calendar month and in case of default, he will be liable for eviction. On
receipt of the said letter, the respondent herein paid the arrears on
27.3.1989 and also informed the revision petitioner’s uncle at Madras. Even
thereafter, the respondent herein has committed default in payment of rent
from March, 1989 to December, 1989 which amounts to wilful default. The
respondent herein was also put on notice on 9.1.1990 setting out the facts and
his supine indifference in payment of rent and requesting the respondent
herein to hand over vacant possession on 1.2.1990 and that the petition
premises is also required for his personal occupation as he has no house of
his own. The respondent herein replied on 12.1.1990 requesting the revision
petitioner to receive the arrears by issuing a receipt or otherwise he will
deposit in the bank as before. The respondent herein also converted the
premises bearing door No.20A as a residential portion without the permission
of the revision petitioner. The respondent herein was also informed to pay
the rental amount in the bank account mentioned above. The revision
petitioner came to know from the bank about the non-payment of rent from
March, 1989 till December, 1989. The petition premises bearing door Nos.20
and 20A are bona fide required for effecting necessary alterations for
residential purposes of the landlord and since he also intends to start a
business in building door No.19 in respect of which also he has filed a
petition for eviction.
3. The petition was resisted in the counter admitting the quantum of
rent at Rs.110/- per month. It is further stated that since the revision
petitioner refused to receive the rental amount of Rs.100/- on 5.7.1985 and
also the amount sent by money order, the revision petitioner’s agent collected
the rental amount in lump-sum, viz., Rs.1,200 /- on 26.1.1986, Rs.1,200/- on
31.3.1986 and Rs.400/- on 1.4.1987 and the agent of the revision petitioner
was in the habit of collecting the rent in lump-sum. Even on earlier
occasions the sum of Rs.125/- was collected towards the rent for the months of
August to December, 1970 by the revision petitioner’s agent in respect of the
petition premises bearing door No.20 and the sum of Rs.50/- was collected
towards the rent for the months of August to December, 1970 in respect of the
petition premises bearing door No.20A. The revision petitioner was collecting
the rental amount in lump-sum till a notice was caused in the year 1989. As
per reply letter dated 27.3.1989, the rent for the months of September, 1988
to March, 1989, viz., Rs.770/- was deposited in the bank account of the
revision petitioner. The rent for the months of April to December, 1989 was
also deposited in the bank account of the revision petitioner also informed in
the notice dated 12.1.1990. The requirement of the petition premises sought
for residential purpose is without bona fide. Even the revision petitioner
gets married, as per the custom in Kayalpatnam, the revision petitioner is to
reside only in the house that will be given to him by his in-laws.
4. Before the Rent Controller, the revision petitioner/landlord
examined himself as P.W.1 and marked Exs.A-1 to A-9 and the respondent/ tenant
examined himself as R.W.1 and marked Exs.B-1 to B-7. The learned Rent
Controller considering such evidence, accepted the case of the tenant that it
was in practice to pay the rent collectively and in lump-sum which was
received without protest and was accepted by P.W.1 in his evidence and
inasmuch as the rental amount claimed was also deposited in the bank under
Exs.B-6 and B-7, in the said circumstances, the tenant has not committed
default wilfully in payment of rent as claimed for the months of March, 1989
to December, 1989 and further recording finding that the requirement of the
petition shop for residential purpose is without bona fide, in that the
petition premises is non-residential premises and so dismissed the Rent
Control Original Petition. In the appeal, the learned Rent Control Appellate
Authority confirmed the order of the learned Rent Controller in dismissing the
Rent Control Original Petition. Such concurrent finding of the learned Rent
Controller and the learned Rent Control Appellate Authority is under challenge
in this Civil Revision Petition.
5. Heard the learned counsel for the revision petitioner and the
learned counsel for the respondent.
6. The learned counsel for the revision petitioner/landlord argued
that since the rental amounts were received in lump-sum previously, the tenant
cannot continue to pay the rent as and when he chooses to pay and
collectively. In this regard, the ned counsel for the revision petitioner
pointed out that despite the letter Ex.A-6 dated 2 2.3.1989 was sent
requesting the tenant to pay the rent in his bank account on or before 5th of
every month, the rent was not paid then and there and every month. As regards
the requirement of the petition premises for own use and occupation for
residential purpose of the landlord, the learned counsel for the revision
petitioner/landlord contended that he intends to start a business in the shop
bearing door No.19, for which a separate petition was filed seeking eviction
and that to reside in Kayalpatnam he is in need of the petition premises for
his residential purpose. The learned counsel for the revision
petitioner/landlord relied on the following decisions:-
(1) Lingambhotla Subbayya vs. – The Subordinate Judge, Vijayawada
and another reported in 1951 M.L.J. 514, in which, a Division Bench of this
Court has held:-
“Where in fact there is a default in the payment of rent, it would be
wrong to hold that default by itself cannot be regarded as a valid ground to
eject a tenant in cases where the tenant proves that by long practice the
house-owner did not insist on regular monthly payment of rent. There cannot
be an agreement under which rent is payable at irregular intervals. Though a
landlord may not have been insisting on regular payment and was accepting
without protest arrears of rent which had accumulated, if he chooses to apply
under section 7 of the Madras Buildings (Lease and Rent Control Act, he will
be entitled to an order of eviction, if he proves there has been a default as
contemplated by the section.”
(2) Thayammal vs. – K.Subramaniam reported in 1989-I M.L.J. 407,
in which this Court has held at page 408:-
“The fact that the tenant sent the rent as soon as a notice was issued
to her with reference to the wilful default will not enable the tenant to
plead that there was no wilful default.”
(3) Manickkampillai vs. – A.Sakuntala and another reported in 2002
-1 Law Weekly 796, in which this Court held:-
“Refusal on the part of landlord to receive is not an excuse for
tenant for not paying admitted rent. Conduct of tenant, held, amounted to
supine indifference.”
7. The learned counsel for the respondent/tenant argued that the
agent of the revision petitioner was in the habit of collecting the rent in
lump-sum till the notice Ex.A-6 caused on 22.3.1989 by the paternal uncle of
the revision petitioner/landlord and as per the reply Ex.B-4 dated 27.3.1989,
the rent for the months of September, 1988 to March, 1989, viz., Rs.770/- was
deposited in the bank account of the landlord and then the rent for the months
of April, 1989 to December, 1989 was also deposited in the bank account o f
the landlord as informed under the notice Ex.A-2 dated 12.1.1990 and as such,
the tenant has not committed default, much-less wilful default in payment of
rent for the months of March, 1989 to December, 1989. With regard to the case
of the landlord that the petition premises required for residential purpose,
according to the tenant, such requirement is without bona fide, in view of the
fact that the landlord, after his marriage, as per the customs prevalent in
Kayalpatnam, is to reside only in the house that will be given to him by his
in-laws. The learned counsel for the respondent/tenant placed the following
decisions:-
(1) Abdul Hameed vs. – M.Sultan Abdul Kader reported in 1996-2 Law
Weekly 525, in which this Court held:-
“The Appellate Authority failed to appreciate the peculiar
circumstances of this case and the conduct of the landlord in receiving the
rent in lump-sum for four months or six months. Though in the present case,
the default was for 12 months, immediately on the filing of the petition, the
entire arrears have been paid. The trial court exercised its discretion
correctly and came to the conclusion that the non-payment of rent was only due
to the practice, which existed between the landlord and the tenant. The
petitioner-tenant was not given to understand at any time either overtly or
covertly that the respondent-landlord is going to utilise this situation as a
ruse to get eviction. The petitioner deposited the entire arrears even at the
first instance without the trial court granting any reasonable time. This
important fact was not taken note of by the Appellate Authority. The order of
the Appellate Authority, which is impugned in this revision, is, therefore,
liable to be set aside and the eviction ordered cannot, therefore, stand.”
(2) Mohammed Arif and 2 others vs. – K.P.R.Jafarullah reported in
1998-2 Law Weekly 610, in which this Court held:-
“In view of the above dictum (in 1996-2 L.W. 525 (Abdul Hameed vs.
– Sultlan Abdul Kader)) and on the basis of the facts the findings of the
authorities below that the tenants had committed default in payment of rent
wilfully cannot be sustained in law. So, in this regard the orders of the
courts below cannot be sustained and they are hereby set aside.”
(3) M/s.Chordia Automobiles vs. – S.Moosa and others reported in 2
000(1) CTC 742, in which in paragraph 8, the Apex Court has ruled:-
“Wilful default means an act consciously or deliberately done with
open defiance and intent not to pay the rent. In the present case the amount
of rent defaulted firstly is on account of the fact that the agent of the
landlord did not come to collect the rent for some reason. Further, notice of
default contained disputed rent. This fact coupled with the fact that
eviction suit was filed before maturing a case of wilful default in terms of
the Explanation to the provision of Section 10(2). The dispute of rent
admittedly was genuine. Further, we find conduct of the appellant throughout
in the past being not of a defaulter or irregular payer of rent. Thus, all
these circumstances cumulatively come to only one conclusion that the
appellant cannot be held to be a wilful defaulter.”
8. The Rent Control Original Petition was filed setting out the clear
case that the tenant committed default in payment of rent from March, 1989 to
December, 1989 that despite the request made as per the letter of the
landlord’s paternal uncle under Ex.A-6 dated 22.3.1989 to deposit the rent
every month in the account of the landlord as mentioned in the said letter,
the tenant not deposited the rent every month regularly. As per letter Ex.B-4
dated 27.3.1989 by way of reply to the letter Ex.A-6, the tenant has informed
that he would deposit the rental amount for the months of September, 1988 to
March, 1989, viz., Rs.770/- in the bank account of the landlord as informed
under Ex.A-6. As per the counter-foil Ex.B-6 dated 27.3.1989, it is seen that
the tenant has deposited a sum of Rs.770/- on 27.3.1989 to the account of the
landlord. The landlord caused lawyer notice under Ex.A-1 dated 9.1.1990
stating that the tenant has not deposited the rental amount for the months of
March, 1989 onwards in the account of the landlord as directed under Ex.A-6
dated 22.3.1989 and the tenant has committed default wilfully in payment of
rent for the months of March, 19 89 to December, 1989. The tenant replied
under Ex.A-2 dated 12.1.199 0 requesting the landlord or the power of attorney
agent to come and collect the rent in person under receipt, failure of which,
he will deposit the rent for the months of April, 1989 to December, 1989 for 9
months, viz., Rs.990/- in the bank account of the landlord. As per
counter-foil Ex.B-7 dated 28.1.1990, the tenant has deposited a sum of
Rs.990/- towards the rent for the months of April, 1989 to December, 1989 in
the account of the landlord. It is seen from Ex.B-1 dated 26.11.1988, Ex.B-2
dated 31.3.1986 and Ex.B-3 dated 1.4.1987 that the tenant paid the rental
amount in lump-sum and it was accepted by the landlord’s paternal uncle as
power of attorney. But even after the notice under Ex.A-6 dated 22.3.1989
that the rent is payable by the tenant on or before 5th of every month and
that he failed to pay the rent for 6 months from September, 1988 to February,
1989 and requested the tenant to pay the arrears of rent in the account
No.153, Madura Bank, Kayalpatnam Branch, the tenant paid in lump-sum i.e.
Rs.770/- on 27.3.1989 as per Ex.B-6 in the Account No.153, Bank of Madura Ltd.
The duty is cast upon the tenant after such clear notice under Ex.A-6 that the
rent is to be paid every month, but again the tenant failed to pay the rent
for the months of April, 1989 to December, 1989 and paid in lump-sum i.e.,
Rs.990/- in the bank account only on 28.1 .1990 under Ex.B-7 after notice
Ex.A-2 dated 12.1.1990. Though it can be said that it was within two months
after causing of the notice under Ex.A-2, the arrears of rent for the months
of April, 1989 to December, 1989 was paid under Ex.B-7 on 27.1.1990 and so
there have been supine indifference and callousness on the part of the tenant
in depositing the rent, as such, in the bank account.
9. Further, it is not averred that the tenant was not informed as to
how the rent is payable as per Ex.A-6 dated 22.3.1989. The paternal uncle and
power of attorney agent of the landlord has clearly informed the tenant to pay
the rental amount in the bank account of the landlord and in fact, the tenant
also paid Rs.770/- under Ex.B-6 on 27.3.1989 towards the rent for the months
of September, 1988 to March, 1989, but still as if he was not informed as to
how the rent is to be paid he sent reply under Ex.A-2 dated 12.1.1990
requesting the power of attorney of the landlord to come and collect the
rental amount in person under receipt and failure of such, he will deposit the
rent in the bank account of the landlord for the months of April, 1989 to
December, 1989, just to get time and he deposited a sum of Rs.990/- towards
rent under Ex.B-7 only on 28.1.1990. The tenant deliberately and
intentionally committed such default in payment of rent for the months of
April, 1989 to December, 1989 and such default amounts to wilful, in that it
is clear that the tenant deposited the arrears of rent as such only with the
intention not to pay the rent regularly. Therefore, the landlord has made out
the case for eviction on the ground of wilful default in payment of rent for
the months of March, 1989 to December, 1989 by the tenant.
10. With regard to the requirement of the petition premises bearing
door Nos.20 and 20A bona fide for the residential purpose, the case set out in
the petition is that the landlord is also owning adjacent premises bearing
door No.19 occupied by a tenant and to evict him he already filed a petition
and by making s uitable alterations in the petition premises for the
residential purpose he will use the same. In the notice Ex.A-1 dated
9.1.1990, it is stated that the premises is required for own use and
occupation of the landlord for residential purpose, in that he is not owning
any other residential building in Kayalpatnam and that he is residing only in
the house of his sister and by doing business in the adjacent premises bearing
door No.19, after vacating the tenant in that premises. The landlord as P.W.1
has stated that the premises bearing door No.20 is used for non-residential
purpose and the premises bearing door No.20A is used for residential purpose
and both are in dilapidated condition. It is further his evidence that he has
obtained permission and sanctioned plan from the panchayat to put up new
construction after demolishing the petition premises under Exs.A-3 and A-4 and
he does not own any other residential premises in Kayalpatnam. The Rent
Control Original Petition is not filed seeking the petition premises for the
purpose of demolition and reconstruction. The requirement sought is only for
own use and occupation for the residential purpose of the landlord.
11. Though in the Rent Control Original Petition, it is not mentioned
that the eviction is sought under Section 10(3) of the Tamil Nadu Buildings
(Lease and Rent Control) Act without stating whether it is under Section
10(3)(a)(i) or under Section 10(3)(a)(iii) of the Act, in paragraph 5 of the
petition, it is stated that the petition premises is sought for the
residential purpose after effecting necessary alterations, since he has no
house on his own for living and since he intends to start a business in the
adjacent premises bearing door No.19 in respect of which, already an eviction
petition has been filed and as such, the requirement is under Section
10(3)(a)(i) for residential purpose.
12. It is admitted by the tenant in his evidence as R.W.1 that the
landlord is residing in the house of his sister at Kayalpatnam and often he
goes over to Madras. Further, it is his evidence that previously, the
petition premises was both for residential or nonresidential. Therefore, it
is clear that by making suitable alterations, the petition premises can be
utilised for residential purpose. R.W.1 though stated in his evidence that
the landlord also owns house at Ambalamarakayar Street at Kayalpatnam, no
particulars have been furnished and in this aspect even the landlord as P.W.1
has not been cross-examined as to whether he owns a house at Ambalamarakayar
Street at Kayalpatnam. Therefore, the requirement of the petition premises by
the landlord for residential purposes is very much bona fide and on that
ground also, the landlord is entitled for eviction. The learned Rent Control
Appellate Authority has not recorded correct and proper finding on the grounds
sought for eviction and therefore, the judgment and decree made by the learned
Rent Control Appellate Authority are to be set aside.
13. In the result, this Civil Revision Petition is allowed with cost,
ordering eviction on the ground of wilful default in payment of rent and also
on the ground of own use and occupation and setting aside the judgment and
decree dated 20.4.1999 made in R.C.A.No.68 of 1991 by the learned Rent Control
Appellate Authority.
Index: Yes
Internet:Yes
ts.
To
1) The Subordinate Judge,
Tuticorin.
2) The District Munsif,
Srivaikundam.
3) The Section Officer,
V.R. Section, High Court, Madras.
S.SARDAR ZACKRIA HUSSAIN,J.