ORDER
AR. Lakshmanan, J.
1. All these three revision petitions arise out of a common judgment rendered by the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 dismissing the appeals filed by the three petitioners against the orders of eviction passed against them by the Rent Controller. All the three petitioners are tenants in the various portions in the same building. Two grounds were urged for the purpose of eviction: (1) wilful default in payment of rent, and (2) bonafide requirement of the premises for the purpose of demolition and re-construction.
2. The Rent Controller by a common judgment in all the three rent control petitions filed by the petitioners, held that the grounds of wilful default in payment of arrears of rent and the bonafide requirement of the premises for the purposes of demolition and reconstruction, has been established. On appeals filed by the petitioners, the appellate authority confirmed the findings of the Rent Controller and ordered eviction. In these three revision petitions, the petitioners challenged the findings rendered by the Appellate Authority on the above two grounds.
3. Rajalinga Chettiar is the petitioner in C.R.P. No. 371 of 1990. He became a tenant under the respondent on 1.12.1978 in respect of Door No. 187, Rajaveedhi, Kurinjipadi, Cuddalore Taluk, on a monthly rent of Rs. 75 per mensem. According to him, he was regularly remitting the rent and the respondent in May, 1983 demanded enhanced rent which he refused to pay. He is running a textile shop in the petition premises. Since the respondent did not send anybody to receive the rent as he was doing earlier, he sent a sum of Rs. 225 by money order representing the rent for the months of May, June and July, 1983 and the same was received by the respondent on 11.8.1983. After receiving the rent, the respondent sent a notice on 18.8.1983 as if the petitioner is in arrears of Rs. 900 completely suppressing the receipt of the Money order. The petitioner tenant, on 27.9.1983, sent a reply denying the averments in the notice. Again for August, 1983 the petitioner sent the rent by money order on 23.9.1983, but the respondent refused it. Immediately thereafter, the petitioner tenant deposited the amount in Post Office Savings Bank Account in his name. On 29.9.1983, he called upon the respondent to specify a Bank so that the rent could be deposited. The respondent without specifying a Bank, issued another notice on 6.10.1983 stating that he was not prepared to receive the rent. According to the petitioner, he was regularly depositing money in the Post Office Savings Bank Account, and when the position being thus, the respondent filed R.C.O.P. No. 25 of 1986 on the file of the Rent Controller on the ground of wilful default as well as for demolition and re-construction. In the petition, it was alleged by the respondent herein that the shops are in dilapidated condition and required demolition and re-construction. The petitioner herein filed a detailed counter-affidavit refuting the allegations of the respondent.
4. In respect of Door Nos. 188 and 184 adjoining the petitioner’s shop, a similar allegation of wilful default has been put forward by the respondent in a similar manner. According to the petitioners, they were forced to deposit the money in the Post Office Savings Bank Account since the respondent refused to receive the rent and also did not specify a Bank. An Advocate- Commissioner was appointed to inspect the premises and he filed a report. Subsequently the court appointed an Engineer, P.W.D. to inspect the premises. However, the said Engineer filed his report only for Door No. 184 and he did not file any report in respect of premises in R.C.O.P.Nos. 25 and 26 of 1986, for which an Advocate-Commissioner was also appointed. The Engineer was directed to inspect the petitioner’s premises (C.R.P. No. 371 of 1990) in respect of Door No. 187 and other premises also, in the interest of parties.
5. The Rent Controller passed an order of eviction holding that there is wilful default and that the building requires demolition. Aggrieved against the same, the petitioners herein preferred Rent Control Appeals before the appellate authority who confirmed the order of the Rent Controller. In fact, the petitioner in C.R.P. No. 371 of 1990 filed an application before the appellate authority to call for the report in respect of his premises by an Engineer, but the request was not acceded to.
6. D. Rajaram Naidu is the petitioner in C.R.P. No. 373 of 1990. He became a tenant under the respondent on 1.12.1978 agreeing to pay Rs. 75 per month by way of rent. He is running a hardware shop in the petition premises. During May, 1983, the respondent demanded enhanced rent through one Krishnasami Chettiar who was working under the respondent for which the petitioner did not agree. The respondent did not send anybody to collect the rent. Therefore, the petitioner was forced to pay the rent for the months of May, June and July, 1983 by money order which was received by the respondent on 11.8.1983. Thereafter, the respondent sent a notice on 18.8.1983 as if the petitioner is in arrears of Rs. 75 suppressing the receipt of the money order. The petitioner sent a reply on 27.9.1983 denying the averments and sent the rent by money order for August, 1983 on 23.9.1983. The respondent refused to receive the same and therefore, the petitioner deposited the amount in the Post Office Savings Bank Account on 29.9.1983. He issued a notice calling upon the respondent to specify a Bank so that the rent could be deposited. The respondent without specifying a Bank, issued another notice on 6.10.1983 stating that he was not prepared to receive the rent. Thereupon, the respondent filed R.C.O.P. No. 26 of 1986 which was allowed and the appeal (R.C.A. No. 25 of 1988) filed by him, was also dismissed and aggrieved by the order of the appellate authority C.R.P. No. 373 of 1990 was filed.
7. R. Subramanian is the petitioner in C.R.P. No. 372 of 1990. He become a tenant under the respondent on 1.12.1978 and was paying Rs. 75 per month by way of rent. He is running laundry shop in Door No. 184, Rajaveedhi, Kurinjipadi. According to him, till July, 1983 there was no dispute and then the respondent demanded higher rent from him which he refused to pay. Thereafter, the respondent did not send anybody for collecting the rent. Without collecting the rent, the respondent issued a notice. Thereafter, the petitioner remitted the following amounts viz., 23.9.1983 – Rs. 200,3.10.1983 – Rs. 600,1.5.1984 – Rs. 400 and 4.6.1985 Rs. 400 to the respondent’s father. Thereafter, the respondent filed R.C.O.P. No. 27 of 1986 on the file of the District Munsif- Rent Controller on the ground of wilful default and also for demolition and re-construction. The case of the respondent is that the building is required for demolition and for re-construction. The Rent Controller ordered eviction on both the grounds of wilful default and for demolition and re-construction which was confirmed by the Appellate Authority in R.C.A. No. 26 of 1988.
8. As already seen, the notice dated 18.9.1983 marked as Ex.A-1 was issued to all the three tenants calling upon them to vacate the respective premises and deliver vacant possession to the respondent herein within a week from the date of receipt of the notice. It is alleged in that notice that the tenant R. Subramanian is in arrears to the extent of Rs. 900 ending with 31.8.1983 and D.Rajaram Naidu and P.K. Rajalinga Chettiar are in arrears to the extent of Rs. 75 individually ending with 31.8.1983 and therefore, they have committed wilful default in the matter of payment of rent and have made themselves liable to be evicted. It is also further alleged that the premises in the occupation of the landlord are in a bad condition of disrepair and the roof is leaky and the rafters have come down and likewise the shops in the occupation of all the three tenants are in a damaged and decrepit condition and therefore, the landlord intends to demolish the entire building i. e., all the five shops including the portion in the occupation of the landlord and put up a new construction in its place. The concluding sentence in the notice Ex. A-1, dated 8.9.1983 is very relevant to be noticed. It reads thus:
If the building is not pulled it will collapse at any time and my client will be put to heavy loss. My client intends to demolish all the shops and put up a pucca new construction in its place.
Even though it was alleged that if the building is not pulled it will collapse at any time, the landlord has chosen to file three rent control original petitions against the petitioners herein only in the year 1986. On the question of bona fide requirement of the premises for demolition and re-construction, the landlord must prove that there is absolute bona fide in his request on the requirements of the premises for the purpose of immediate demolition and re-construction. As already stated, even though the notice was issued on 18.9.1983 stating that the building will collapse at any time if it is not demolished, the landlord has chosen not to file rent control petitions for a period of three years and odd. The singular factor is enough for this Court to reject the plea of the landlord’s requirement of the building for demolition and re-construction. It appears that the landlord is not so serious in seeking eviction on the ground of demolition and re-construction. To a query from the court as to the delay of three years and odd in filing petition learned Counsel appearing for the landlord was not in a position to place before this Court or explain the reason for the delay which itself would go to show that the requirement of the landlord for the purpose of demolition and re-construction, is not bona fide. No serious arguments were advanced on this question by the learned Counsel for the landlord and no authority was placed justifying the delay of 3 years and odd in filing the petition for demolition and re-construction. Since I am rejecting the claim of the landlord under Section 14(1)(b) of the Act on this short ground of inordinate delay, I am not going into the merits of the rival claims of both parties on this issue which I feel, is wholly unnecessary.
9. However, the question of wilful default in payment of rent, was argued very seriously by the learned Counsel for the landlord. It is the case of the tenants in all the three petitions that the landlord has demanded increased rent which the tenants declined to pay and thereupon the landlord did not send anybody to collect the rent as has been done earlier for May, June and July, 1983. It is also the case of the tenants that the money order for three months rents sent by P.K. Rajalingam Chettiar and D.Rajaram Naidu were received by the landlord under Exs.P-5 and P-9, dated 11.8.1983. Thereupon a notice has been issued on 18.9.1983 by the landlord under Ex.A-1 alleging arrears of rent of Rs. 75 individually in respect of D. Rajaram Naidu and P.K. Rajalinga Chettiar ending with 31.8.1983 and the alleged arrears of Rs. 900 ending with 31.8.1983 so far as the tenant R. Subramaniam is concerned. On 23.9.1983 Rajalinga Chettiar and D. Rajaram Naidu sent Rs. 75 under Exs.B-8 and B-11. The landlord refused to receive the money orders. However, the Rent Controller and the appellate authority did not agree with the case of the tenants regarding this refusal. On 27.9.1983 a reply was sent for and on behalf of D. Rajaram Naidu and P.K. Rajalinga Chettiar through their counsel Mr. A. Chakrapani in reply to the notice dated 18.9.1983 under Ex.A-1. The tenants have expressed their willingness to send the rent by money order every month to the landlord. Admittedly on 28.9.1983 under Exs.B-10 to B-l2 Rajalinga Chettiar and Rajaram Naidu opened postal account in their names. In fact, a letter was sent on 29.9.1983 (not marked) calling upon the landlord to specify a Bank. On 6.10.1983, the landlord sent a reply stating that his client was not prepared to receive the rent. It is useful to re-produce the relevant passage from Ex.B-6 the reply notice dated 6.10.1983. It reads thus:
My client is not prepared to receive the rent from your client. Please ad vise your client to vacate the property and deliver vacant possession to my client. If they do not, my client will file an application for eviction, and they will be held liable for all costs and damages.
R. Subramanian, the tenant has also paid rents after notice as follows:
23.9.1983 – Rs. 200:3.10.1983 – Rs. 600 (referred to in Ex.B-4) 1.5.1984 – Rs. 400:4.6.1985 – Rs. 400.
Payments prior to notice were also made under Exs.B-1, B-13 and B-14. In fact, monies deposited in the Post Office Savings Bank Account were withdrawn by the landlord on 16.4.1988 when the matter was pending before the Rent Controller.
10. As already stated, no serious argument was advanced on the question of bonafide requirement of building by the landlord for the purpose of demolition and re-construction. On the question of wilful default, serious arguments were advanced by both parties.
11. According to Mr. G. Rajagopalan, learned Counsel for the petitioners- tenants, since the rents sent by money order were refused, the tenants had to deposit the same in the Post Office Savings Bank Account and that Section 8(2) of the Act is only an enabling section to prove the bona fide of the tenant and absence of wilfulness on the part of the tenant in the matter of payment of rent. Therefore, he would contend that the non-adoption of the procedure prescribed under Section 8(2) which could be adopted by the tenant in his discretion, does not throw any light upon want of bona fide of the tenants in the instant cases. Therefore, he would further contend that the course adopted by the tenant establishes their bona fides.
12. On the other hand, the leaned counsel for the landlord contended that even if the landlord has not specified a Bank and had refused the money orders, nothing prevented the tenant by filing a petition for depositing the rent into rent control court so as to avoid wilful default in payment of rent. It is further contended that even assuming that the tenants had deposited the rents in their names in the Post Office Savings Bank Account, the landlord was not at all aware of the said deposit and that he was not even intimated of the said deposits and the landlord had lost the benefit of using the monies for his own purpose and therefore, the course adopted by the tenants is against the mandatory requirements of Section 8 of the Act. Since the tenants had taken the risk and failed to resort to the remedies available under Section 8 of the Act, it has to be construed the default as wilful and therefore, the tenants are not entitled to the protection under the Act, as the factum of deposit was not brought to the notice of the landlord and therefore, the action of the tenants is wilful.
13. Mr. G. Rajagopalan in support of his contention cited the following authorities which are to the effect that the procedure prescribed under Section 8 of the Act is only optional and not mandatory. They are:
1. Thaiyalnayagi Ammal v. Ayyana Chettiar 1976 T.L.N.J. 72 (Ramaprasada Rao, J.)
2. A. Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L.W. 107. (Singaravelu, J.)
3. K. Mohideen Sahib v. Theode Samuel (1985)2 M.L.J. 354. (K.M. Natarajan, J.)
3-a. Abdul Majeeth v. Masiammal 1981 T.L.N.J. 315. (Sengottuvelan, J.)
4. Durgai Ammal v. R. T. Mani (1989)1 L W. 155. (Sathiadev and Bellie, JJ.)
5. Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994)1 L.W. 340. (Ratnam, J.)
6. Padmavathi Ammal v. Gopal (1994)2 M.L.J. 622. (Pratap Singh, J.)
7. G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. 1995 All India High Court Cases 472. (Pratap Singh, J.)
14. On the other hand, Mrs. Pushpa, learned Counsel for the respondent landlord cited the following decisions in support of her contention that Section 8 is mandatory and not optional. They are:
1. Kalyani v. G.V. Subramaniam (1990) 1 M.L.J. 29. (Ratnam, J.)
2. N. Damodaran Naicker v. Janaki Ammal (1995) 1 M.L.J. 33. (Thangamani, J.)
3. Marudachala Udayar v. Dhandapani (1980) 1 M.L.J. 169 : 93 L.W. 549. (Nainar Sundaram, J.)
4. Vasavambal v. ChenniappaGounder (1980) 1 M.L.J. 207. (Ratnam, J.)
5. Muktha Bai v. Adinarayana Chetty (1989) 1 M.L.J. 502. (Sivasubramaniam, J.)
6. Umrao Bai v. Dhanalakshmi Ammal (1989) 2 L.W. (S.N.) 7. (Sivasubramaniam, J.)
7. Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum 100 L.W. 510. (Padmini Jesudurai, J.)
15. Let me now deal with the judgments cited by Mr. G. Rajagopalan. Thaiyalnayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. (S.N.) 15 : 1976 T.LN.J. 72, is a judgment of Ramaprasada Rao, J., as he then was, in an identical matter. In that case, the tenant, to avoid the situation of herself being branded as a person committing wilful default in payment of rents, proved her bona fides by producing evidence to the effect that since the rents by money order were refused, she had to deposit the same in the Savings Bank Account in a Post Office. Contrary to the finding of the Rent Controller, the Appellate Authority found that the petitioner- tenant had committed wilful default in payment or tendering of the rents. Reliance was placed by the landlord on Section 8(2) of the Act which says that the Tenant may, in such situations, call upon the landlord to name a Bank for depositing the arrears then accrued and thereafter to be paid. Ramaprasada Rao, J., held that this is only an enabling section to prove the bona fide of the tenant and absence of wilfulness on the part of the tenant in the matter of payment of the rents and that the non-adoption of the procedure prescribed under Section 8(2) which could be adopted by the tenant in her discretion does not throw any light upon want of bona fides of the tenant in that case. The learned Judge said that the course adopted by the tenant in depositing the rent in the Post Office Savings Bank Account, establishes her bona fides. In the concluding portion the learned Judge has observed that the procedure prescribed under Section 8(2) of the Act is only optional and not mandatory. The learned Judge has observed as follows:
As has been already observed on many occasions, in situations like this, that unless an element of indifference, which is wanton and deliberate besides being designed, is provable and proved in the attitude of the tenant, it cannot be said that all defaults made in the payment of rent are to be automatically characterised as wilful default. I do not agree with the finding of the Appellate Court, in which a material irregularity is patent, that the petitioner tenant has committed wilful default in the payment of rents.
A. Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L W. 107. (Singaravelu, J): That was also a case of wilful default in payment of rent. The Rent Controller accepted the plea that there was wilful default. The Appellate Authority confirmed the finding with reference to the wilful default. In the Revision, it was alleged that the tenant failed to pay the rent from December, 1976 and that the default is wilful. The defence of the tenant was that he sent money orders, but the landlord refused the same and thereafter, he deposited the monthly rents in Canara Bank from September, 1977 onwards. He also produced the pass book for perusal before the appellate court. It was argued before the learned Judge by the leaned counsel for the landlord that even if the passbook is allowed to be received in evidence it will only show that the tenant has been depositing the rents in Canara Bank in his own name and not in the name of the landlords and therefore, it is not sufficient compliance of Section 8 of the Act. The judgment of Ramaprasada Rao, J. in Thaiyalnayagi Ammal v. Ayyana Chettiar (1976) 1 M.L.J. (S.N.) 15; 1976 T.LN.J. 72, was cited before the learned Judge. Ultimately, the learned Judge, however, set aside the order of eviction passed by the court below and remanded back the matter to the rent controller for the purpose of receiving the pass book as additional evidence on application by the tenant.
K. Mohideen Sahib v. Theodre Samuel (1985)2 M.L.J. 354. (K.M. Natarajan, J.): In this case, money order sent by the tenant was refused by the landlord repeatedly and in view of the fact that he has issued a notice calling upon the respondent to specify the name of the bank into which the rent has to be deposited and immediately after receipt of the notice, he deposited the entire arrears. Under such circumstances, the learned Judge has observed that it cannot be said that the tenant committed wilful default in payment of rent. The learned Judge had also followed the judgment in A. Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L.W. 107, of Singaravelu, J., who held that the procedure prescribed under Section 8(2) of the Act is only optional and not mandatory and the non-adoption of the procedure does not constitute wilful default.
Durgai Ammal v. R.T. Mani (1989)1 L.W. 155 -(Division Bench: Sathiadev and Bellie, JJ.): The two is absolutely nothing in the provisions as to where the amount has to be deposited and no procedure has been contemplated and as such the failure to adopt the procedure under Section 8(5) would not constitute wilful default.
Durgai Ammal v. R.T. Mani (1989)1 L.W. 155, -Division Bench (Sathiadev and Bellie, JJ.): The two revisions in this case came up before Mohan, J., on 19.9.1983. He directed the papers to be placed before Hon’ble the Chief Justice for posting the same before a Bench, since he was of the opinion that a careful reading of the decision in (1981)1 M.L.J. 516, shows that the principle laid down in 0.41, Rule 22 of the Civil Procedure Code though not made specially applicable to the proceedings arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, on the principles of justice, equity and good conscience, it can be done. The learned Judge felt that such an interpretation would lead to widening the revisional jurisdiction, which is conferred specifically under Section 25 of the Tamil Nadu Act 18 of 1960 which will obliterate the distinction between the revisional and appellate jurisdiction. Since Mohan, J., was unable to agree with the judgment of this Court in (1981)1 M.L.J. 516 the same was placed before a Division Bench. The matter was heard by the Division Bench consisting of Sathiadev and Bellie, JJ. The Bench on a consideration of the various authorities cited by both parties, came to the following conclusions.
Hence, the reference made is answered by holding that, on a proper interpretation of the scope of powers exercisable under Section 25, it is well open to the respondent to satisfy the High Court about the correctness, legality, etc., of the order; once that appellate order is brought before it by an aggrieved party and in examining the records of the Appellate Authority it could do it only within the ambit of powers that could be exercisable by it under Section 25.
The reference was answered by the judgment of the Division Bench dated 27.1.1987. After answering the reference the Division Bench again heard the matter on merits and rendered their decision on 4.3.1987. It was also a case of wilful default on the part of the tenant in paying the rent. The Rent Controller rejected the landlord’s petition, i.e., on the question of denial of title and wilful default in payment of rent. The landlord preferred an appeal, and the appeal was allowed on both the grounds. The tenant preferred revision in this Court. The learned single Judge who heard the revision set aside the order of the appellate authority and remitted back the matter for further enquiry. As directed, further enquiry was made. Thereupon, the appellate authority found that the tenant had committed wilful default in payment of rent. As against the said decision, a revision was filed in this Court. It was argued before the Division Bench that the respondent has not sent the rent to the landlord, but also has not deposited it and therefore, the tenant must be deemed to have committed wilful default in payment of rent. In support, of this plea, reliance was placed on the decision G.K. Jose v. Ramathal (1979) 1 M.L.J. 372, Ramanujam, J in this judgment held as follows:
On the question of wilful default in payment of arrears of rent, there is no dispute that for certain months the rents have not been paid. But, such default, it is urged, cannot be taken to the wilful. But the finding of the appellate authority is that the default committed by the petitioners-tenants is wilful in that even if the landlady has refused to receive the rent, they should have deposited the amounts in a bank or before the Rent Controller which they have not done, and once they have not remitted the rent after knowing the consequences of non-payment the default should be taken to be wilful. On the materials, I am not able to say that the decision of the appellate authority on this question is erroneous.
Citing the decision of Ramanujam, J. which was disposed off at the admission stage as above, it was argued before the Division Bench that the tenant had right to deposit the rent before the Rent Controller but did not do so and hence it follows that the tenant had committed wilful default. While disagreeing with the view of Ramanujam, J., the Bench has observed as follows:
We are unable to agree with the learned Judge. Section 8 provides that in case the landlord refuses to receive rent tendered by the tenant the tenant can call upon the landlord to name a bank where she can deposit it and if he fails to do so the tenant can send it by money order and if even that money order is not received, the tenant can deposit the rent before the Rent Controller. But it is nowhere stated that if the tenant does not do so it will amount to wilful default. When a landlord refuses to receive the rent sent by the tenant it is his fault. He cannot subsequently say that the tenant has not exercised his right given under Section 8 and therefore he must be taken to have committed wilful default. Similarly if the tenant has not deposited the rent before the Rent Controller in case of bonafide doubts as to the person who is entitled to receive the rent and the person concerned does not help to remove the doubt of the tenant, the tenant cannot be said to have committed wilful default in payment of rent. Therefore, we find that the finding of the appellate authority that the tenant committed wilful default in payment of rent is wrong and hence that finding has to be set aside.
Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994)1 L.W. 340 (Ratnam, J.); In this case, it was held as follows:
In this case, there is no dispute that the money order sent by tenant was refused by landlord. Thereafter, it was open to the respondent (tenant) to have followed the procedure laid down in the Act with reference to the deposit of rent, but instead, he had opened an account and had been depositing the rents in that account so as to make it available to the petitioner whenever required. Though it may be that the respondent (tenant) was not in order in not having resorted to the provisions of the Act with reference to the payment of rents, inasmuch as the evidence of R.W. 1 that he had deposited the amounts in a bank account has not been repudiated or rejected as unacceptable, it follows that there could not be any wilful default as such in the payment of rents in this case, as contended by the learned Counsel for the petitioner.
Padmavathi Ammal v. Gopal (1994) 2 M.L.J. 622, (Pratap Singh, J.): This case was disposed of at the admission stage. The tenant in that case filed a petition under Section 8(5) of the Act seeking for permission to deposit the rent in court. In that petition, he had stated that since the landlord had been refusing to receive the rent despite the repeated notice to the landlord to inform the Bank in which rent is to be deposited, he had not sent any reply and since he continues to refuse to receive the rent, he had filed the petition under Section 8(5) of the Act. The landlord resisted the petition that there was wilful default in payment of rent and that the tenant never offered to pay the rent and since he had not taken steps which he was obliged to take under the provisions of the Act, the petition is liable to be dismissed. When construing the scope of Section 8, the learned Judge has observed as under:
The procedure laid down in Section 8 prescribes that the tenant should take certain steps to pay rent and if the landlord still consistently refuses to receive the rent, the tenant, can resort to Section 8(5) of the Act and pay the rent before the Rent Controller and continuously pay the rent. The first step is that the tenant should require the landlord to specify within 10 days from the date of receipt the bank in which the rent is to be deposited to the credit of the landlord. If the landlord specifies the bank, the tenant can remit the rent into the bank and shall continue to deposit the rent into the Bank. In case, the landlord does not specify the bank, then the tenant is obliged to remit the rent to the landlord by money order after deducting the money order commission. If still the landlord refuses to receive the rent by money order under Sub-section (4) then the tenant may deposit the rent before the Rent Controller and to continue to deposit the same. Section 8 enables a tenant to pay the rent in the aforesaid manner. When the tenant chooses to exercise the enabling provision, the tenant shall take steps one after another, as laid down in the procedure and only if the landlord still refuses to receive the rent then he can come to the court with a petition, as provided under Section 8(5) of the Act. In the instant case, the tenant had skipped Section 8(4) of the Act, which he is obliged to take before he comes to court. Since he had not done it, the petition filed by him under Section 8(5) of the Act has to necessarily fail. The appellate authority had hot considered this aspect of this case, and he had committed the error and consequently it is liable to be set aside.
Thus, it is seen from the above judgment that Section 8(5) of the Act is only an enabling provision.
G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. (1995) 1 All India High Court Cases 472, (Pratap Singh, J.): The revision petition was directed against the order of the Appellate Authority who found that there was no wilful default in payment of rent, concurring with the learned Rent Controller. The landlord came forward with a revision to this Court. An argument was advanced on behalf of the landlord that the tenant could have filed a petition for deposit of the rent into court, and could have taken steps for payment of rents as per the provisions of the Act. Rejecting the contention Pratap Singh, J. has observed as follows:
By virtue of the events in the previous months that there has been legal tender and refusal thereof, the failure on the part of the tenant to take other steps for payment of rent as per the provisions of the Buildings Act, cannot be characterised as wilful default in payment of rent.
16. Let me now deal with the authorities submitted by the learned Counsel for the landlord. Kalyani v. G.V. Subramaniam (1990) 1 M.L.J. 29. (Ratnam, J.): The landlord in that case prayed for an order of eviction against the petitionen from the room in her occupation in the ground floor on the ground that she had committed wilful default in payment of rent. The tenant filed a counter denying having committed wilful default and she had also deposited the entire rent in Indian Bank, Kothaval Bazaar to show her bona fides as the money orders sent by her had been refused by the landlords. The Rent Controller found that the landlord had not established that the petitioner had committed wilful default in payment of rent and therefore, the landlord is not entitled to an order of eviction against the tenant. The’ appellate authority held that the tenant had not paid rents and that she had also not taken steps whatever to deposit the rent and therefore, she should be held to have committed wilful default in payment of rent.
17. This Court held as follows:
When the rent tendered was not properly tendered and in due time as per the provisions of the Act, it cannot be said that the refusal by the landlords to receive the rents so tendered was improper. It is in this context that the provisions of Section 8 of the Act are relevant. If, according to the petitioner, the refusal of the rent by the landlords sent under Exs.R-2 to R-5 was not justified then, under Section 8(2) of the Act, the petitioner should have required the landlords to specify within 10 days of receipt of a notice sent by her, a Bank in which the rent may be deposited by her to the credit of the landlord. Under Section 8(3) of the Act, on the specification of such a Bank the tenant should deposit the rent into the Bank and continue to deposit the subsequent rents also. In the event of the landlord not specifying a Bank, Section 8(4) of the Act provides that the tenant shall remit the rent to the landlords by money order and if the landlords refuse to receive the rent remitted by money order, then the tenant may deposit the rent before the Rent Controller under Section 8(5) of the Act. It is thus seen that Section 8 of the Act makes comprehensive provision protecting the tenant from wrongful refusal of a landlord to receive the rents. It is not the case of the petitioner, as stated earlier, that the rent was tendered to the landlords as it should have been and that it was refused.
It was further observed as follows:
The question of remitting the rent by money order statutorily arises only in the event of the omission on the part of the landlords to specify a Bank and without even calling upon the landlords to name a Bank, the petitioner had proceeded to send the rents consolidated for three months and two months, without any justification whatever. Even on the basis that the landlords had not specified a Bank and had refused the money orders, nothing prevented the petitioner from filing an application for deposit before the concerned Rent Controller with a view to deposit the rents, so as to avoid wilful default in the payment of rents.
It is to be noticed that the above decision was rendered by Ratnam, J., on the question of successive petition for eviction with reference to a cause of action arising after the filing of the prior application for the same relief. Therefore, this judgment is distinguishable on facts and circumstances of the case on hand.
18. N. Damodaran Naicker v. Janaki Ammal (1995) 1 M.L.J. 33. (Thangmani, J.): A revision was filed by the landlord who instituted eviction action against the tenant on the ground of wilful default etc. The tenant resisted the action contending that she had paid the rent up to may, 1984 and in fact, on 25.7.1984, she called upon the landlord to specify a Bank wherein she could deposit the rents. However, the landlord never replied. The Rent Controller ordered eviction and on appeal, the appellate authority took the view hat non-payment of rent is not wilful and accordingly allowed the appeal and set aside the order of eviction passed by the Rent Controller, Before Thangamani, J, the decision rendered by Nainar Sundaram, J., in Marudachala Udayar v. Dhandapani (1980) 1 M.L.J. 169, was alone cited. The learned Judge has pointed out that to test the case of the parties in such a context, the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction, which is incorporated in the Act. The learned Judge concluded by saying as under:
Where wilful default in payment of rent is alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the payment of the rent, the court cannot ignore the implications of Section 8 and assess the controversy without reference to such implications. In the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts.
19. It is to be noticed that none of the judgments cited by Mr. G. Rajagopalan, learned Counsel for the tenants referred to supra, have been cited before Thangamani, J. This apart, the Division Bench judgment reported in DurgaiAmmal v. R.T. Mani (1989) 1 L W. 155 was not cited at all before the learned Judge. Therefore, the learned Judge had no occasion to consider and deal with the views expressed by other learned Judges as referred to earlier and also of the judgment of the Division Bench.
20. Nainar Sundaram, J. in Marudachala Udayar v. Dhandapani (1980) 1 M.L.J. 169. The landlord preferred a revision in this Court, and sought eviction of the tenant on the ground of wilful default and requirement of the premises for the occupation of his daughter. On the question of wilful default, the rent controller upheld the case of the landlord and eviction was ordered. The appellate authority reversed the finding of the rent controller on the question of wilful default. The case of the landlord was that there was failure by the tenant to pay the rent continuously from March, 1973 to July, 1974. The tenant has urged that he has paid rents. Nainar Sundaram, J., (as he then was), suggested that to test the case of the parties in such a context, the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction. The learned Judge observed as follows:
There is ample safeguard made for the tenant in case the landlord refuses to receive the rent or evades the receipt of the rent. The receipt of the rent contemplated under Sub-section (2) of Section 8 must only be in accordance with the provisions of Sub-section (1). If the parties choose to adopt any other mode of payment and acknowledgement of the rents they have to be content with the consequences, beneficial or otherwise, that may follow there from. If the tenant proves the payment of the rent by other modes, the court can accept such proof and relieve the tenant from the consequences of Section 10. But, where wilful default in the payment of rents is alleged by the landlord and the answer of the tenant is that the landlord never issues receipt for the payment of the rents, the Court cannot ignore the implications of Section 8 and assess the controversy without reference to such implications. In the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts.
It should be noticed that the decision rendered by Ramaprasada Rao, J., in Thaiyalnayagi Animal v. Ayyana Chettiar (1976) 1 M.L.J. (S.N.) 15 : 1976 T.L.N.J. 72, was not cited before the learned Judge. This apart, there was no proof of payment of rent and therefore, it would not be in consonance with the provisions of the Act to presume that the tenant must have paid the rent and the landlord must have declined to issue receipts. In the instant case, admittedly, the landlord has refused to receive the rent which compelled the tenant to open post office Savings Bank Account to deposit the rents immediately thereafter.
21. Ratnam, J. in Vasavambal v. Chenniappa Gounder (1980)1 M.L.J. 207: In this case, the landlady filed a petition for eviction against the tenant saying that the tenant has not paid the rents and had thus committed wilful default. The tenant while admitting that he paid Rs. 500 as advance at the time of the lease, denied that he had committed wilful default in the payment of rents. In addition, it was also claimed by him that the landlord refused to receive the rent with ulterior designs to get an enhanced rent. The rent controller held that the default in payment of rent committed by the tenant was wilful. The appellate authority held that under the notices issued by the landlady, no clear two months’ time as required by explanation added to Section 10(2) had been given consequently, the default committed by the tenant cannot be construed as wilful. On revision, this Court held as follows:
The Explanation to Section 10(2)(1) added by Tamil Nadu Act XXIII of 1973, does not contemplate that before a default could be construed as wilful two months’ notice should be given. The explanation only states that if after the issue of notice of two months the rent remains unpaid, the default will be construed as wilful. The explanation is not exhaustive of all cases of wilful default and it is unnecessary for a landlord to issue a notice to the tenant giving two months clear time before eviction can be sought on the ground of wilful default. The omission, therefore of the petitioner to issue two months notice will not render what was clearly wilful default, any the less such wilful default.
Again at page 209, it is observed as follows:
If there was a refusal on the part of the petitioner to receive the rents as the respondent would allege, certainly it was open to him to take appropriate proceedings under Section 8 of the Act. In the absence of any such proceedings, it is not possible to accept the case of the respondent on the basis of Exs.B-4 and B-5 that there was a refusal on the part of the petitioner to receive the rents as and when tendered. This explanation not having been accepted, the conclusion is irresistible that the respondent as found by the lower appellate court, was guilty of non-payment of rent for a very long time and the omission to pay the rents on time in the instant case is only on account of the supine indifference of the respondent and not for any other justifiable reason. The respondent should therefore be held to have committed wilful default in the payment of the rents for the period in question, which would justify an order of eviction being passed against him.
It is to be noticed that before Ratnam, J., the judgment of Ramaprasada Rao, J. in Thaiyalnayagi Ammal v. Ayyana Chettiar (1976)1 M.L.J. (S.N.) 15 : 1976 T.L.N.J. 72, was not cited.
22. Sivasubramanian, J. in Muktha Bai v. P. Adinarayana Chetty (1989)1 M.L.J. 502: In that case, the revision was directed against the order of the appellate authority dismissing the appeal by the landlord by agreeing with the finding of the rent controller. The tenant contended that he was regular in payment of rents, that he was not able to ascertain the details of the legal representatives of the deceased landlord and that therefore, he was not in a position to pay rents to any one. Further, he submitted that nobody demanded rent from the respondent and as soon as the eviction petition was filed, the entire rent was deposited by him into court. The tenant, therefore, submitted that he has not committed wilful default in payment of rent. Sivasubramanian, J. while holding that the tenant has committed wilful default and is liable to be evicted, has observed thus:
Elaborate provision is made under Section 8 of the Rent Control Act for payment of rent in cases when a landlord refuses to accept or evades the acceptance of rent. In case, where the address of the landlord or his authorised agent is not known to the tenant he may deposit the rent before the Rent Controller under Section 8(4) of the Act. Again, there is a provision under Section 9(3) of the Act enabling the tenant to deposit rents before the prescribed authority where any bonafide doubt or dispute arises as to the person who is entitled to receive the rent. When the statute has made specific provisions it is not open to the tenant to commit default for a long time solely on the ground that he was not aware of the names of the legal representatives of the landlord. Though there cannot be any hard and fast rule in such matters. In this case the tenant was totally indifferent in the payment of rent and the failure to pay rent was deliberate. It is no doubt true that there is a clear difference in law between the default and wilful default and that every default cannot be constrained in law as wilful default. A wilful default is a default accompanied by a particular state of mind which cannot be directly proved but has to be inferred from the entire complex set of circumstances and that to hold that a tenant is wilful in payment of arrears of rent, it must be proved beyond boubt that he had exhibited supine indifference and callousness as held in a number of cases. In this case there was a conscious failure of the tenant to pay rents without any justification and, therefore, there is no jurisdiction for holding that there was no element of wilfulness. The term wilful default is a meaningful phraseology used by the statute with a definite purpose.
23. Sivasubramanian, J. in Umrao Bai v. Dhanalakshmi Ammal and Ors. (1989)2 L.W. 7 (S.N.): The learned Judge has taken the same view as in the earlier case in Muktha Bai v. P. Adinarayana Chetty (1989)1 M.L.J. 502. The learned Judge observed thus:
The authorities below took it for granted that rents were regularly deposited in the bank account. But as a matter of fact, it is not so. I do not find any justification for the conclusions arrived by the authorities below to the effect that by depositing the amount into the bank they have established their bona fides in not paying the amount to the petitioner. It is significant that even after the specific demand made by the petitioner by issuing registered notice, the respondents, did not choose to pay the rents to the petitioner by depositing the amounts before the learned Rent Controller. Even if such a deposit can be taken as sufficient compliance I find it difficult to accept the same since the factum of deposit of every month’s rent was not brought to the notice of the petitioner. For all these reasons, I find that the findings of the authorities below on the question of wilful default suffer from a grave infirmity as they have failed to consider the relevant facts and they have failed to exercise their jurisdiction in a proper manner.
Here again, the earlier decisions in Thyaiyalinayagi Ammal v. Ayyana Chettiar (1976)1 M.L.J. (S.N.) 15 : 1976 T.L.N.J. 72 of Ramaprasada Rao, J., A. Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L.W. 107, of Singaravelu, J.K. Mohideen Sahib v. Theodre Samuel (1985)2 M.L.J. 354 of K.M. Natarajan, J. and Durgai Ammal v. R.T. Mani (1989)1 L.W. 155, Division Bench consisting of Sathiadev and Bellie, JJ. were not cited before the learned Judge.
24. Padmini Jesudurai, J. in Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum 100 L.W. 510: The learned Judge was also of the view that sending the rents 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. The tenant had to send the rent only to the landlord and if the same was refused, he should have followed it up as required of him under the Act. Here again, the earlier judgments were not cited before the learned Judge.
25. One more decision of Ratnam, J. reported in K. Avinasilingam v. Hamsa and Anr. 1990 T.L.N.J. 108, can also be referred to in this context wherein the learned Judge distinguished on facts, the Division Bench judgment of this Court reported in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155, of Sathia Dev and Bellie, JJ. The tenant was the petitioner in the revision. The landlord prayed for an order of eviction against the tenant on the ground that having obtained an order for deposit of rents under Section 8(5) of the Act, the tenant wilfully defaulted in payment of monthly rent for the months of April, etc., of 1983. In the counter-affidavit filed by the petitioner, a plea was raised that as a result of the obtaining of orders under Section 8(5) of the Act, the landlord could not initiate proceedings for eviction against the tenant under Section 10(2)(b) of the Act and that there was also no wilful default in the payment of rents for the months in question. The learned Counsel for the tenants contended that when once there is an order passed under Section 8(5) of Act, resort to eviction under Section 10(2)(i) of the Act cannot be had at all. In support of his contention, attention was drawn to the observations occurring at page 166 in Durgai Ammal v. R.T. Mani (1989)1 L.W. 155. The learned Counsel for the landlords submitted that where an order for deposit of rents under Section 8(5) of the Act had been obtained and that had not been complied with, it would be nothing but a case of wilful default, as an order under Section 8(5) of the Act is intended only as a mantle of protection thrown on the tenant against his removability on the ground of wilful default. Ratnam, J. while considering the rival submissions of both parties, observed as follows:
It has to be remembered that it was the petitioner who had invoked the jurisdiction of the Rent Controller under Section 8(5) of the Act and invite an order with a view to avert any possible proceedings for eviction on the ground of wilful default being initiated against him by the landlords. In such a situation, the failure of the petitioner to deposit the rents into court for the months referred to above cannot but be characterised to be deliberate and wilful.
Again the learned Judge has observed that the tenant who was fully aware of his obligation to deposit the monthly rents under Section 8(5) of the Act pursuant to the order obtained by him, had admittedly not deposited the rents for the months in question. In the concluding portion of his judgment it is observed as follows:
Under those circumstances, where an order has been passed under Section 8(5) of the Act, it is but proper that the deposits should be made at least within the time limit permitted for the payment of rents. The reliance placed by learned Counsel for the petitioner upon the stray observation at page 166 in the decision reported in Durgai Ammal v. R.T. Mani (1989)1 L.W. 155, does not in any manner assist the case of the petitioner. In that case, from the facts as set out therein no order under Section 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant and the argument that Section 8 of the Act should have been resorted to by the tenant in order to save himself from the consequences of the commission of wilful default. It was observed that the failure of a tenant to resort to Section 8 of the Act to deposit the rents will not amount to wilful default on his part in payment of rents. That observation has no relevance whatever in a case like this, where an order under Section 8(5) of the Act had been obtained by the tenant and the rents had not been deposited in accordance with that order.
26. It has to be seen that the learned Judge distinguished the order of the Division Bench in Durgai Ammal v. R.T. Mani (1989)1 L.W. 155, only on the ground that in that case, no order under Section 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant. The learned Judge has not distinguished the finding rendered by the Division Bench while reversing the decision of Ramanujam, J. in G.K. Jose v. Ramathal (1979)1 M.L.J. 372, in para 12 of their order. Perhaps, para 12 of the Division Bench judgment would not have been drawn to the attention of the learned Judge. In this case, the landlord has admittedly refused to receive the rent from the tenant under Ex.B-6 which compelled the tenants to open the Post Office Savings Bank Account in their names. Admittedly, the landlord had also refused to receive the money orders sent by the tenant, In fact, a letter was sent from the tenant on 29.9.1983 which has been referred to in Ex.B-6 asking the landlord to name a Bank. However, on 6.10.1983, a reply was sent by the counsel for the landlord that his client was not prepared to receive the rent. Under such circumstances, the tenants, in my opinion had taken the right step in depositing the money in the Post Office Savings Bank Account, which establishes the bona fides of the tenants. As has been observed by Ramaprasada Rao, J. unless an element of indifference, which is wanton and deliberate besides being designed, is provable and proved in the attitude of the tenant, it cannot be said that all defaults made in the payment of rent are to be automatically characterised as wilful defaults. I am, therefore, unable to agree with the findings of the courts below in which a material irregularity is patent, that the petitioner- tenants had committed wilful default in the payment of rents. I respectfully agree with the view taken by Ramaprasada Rao, J., in Thaiyalinayagi Ammal v. Ayyanna Chettiar (1976)1 M.L.J. (S.N.) 15 : 1976 T.L.N.J. 72 followed by the views expressed in A. Soundarapandian Nadar v. Madasamy Mudaliar (1982)95 L.W. 107, (Singaravelu, J.), K. Mohideen Sahib v. Theodre Samuel (1985)2 M.L.J, 354 (K. M. Natarajan, J.), Padmavathi Ammal v. Gopal (1994)2 M.L.J. 622, (Pratap Singh, J.), G. Kanniah Chetty v. M. Subramaniam (Died) and Ors. (1995)1 All India High Court Cases 472, (Pratap Singh, J.) and Abdul Majeeth v. Masiammal 1981 T.LN.J. 315, (Sengottuvelan, J.). I am also of the view that in the instant case, the tenants have proved their bona fides by producing documentary evidence to the effect that since the rents sent by money orders were refused by the landlord and the landlord himself was not prepared to receive the rents from the tenants under Ex.B-6 dated 6.10.1983, the tenants had to deposit the same in the Post Office Savings Bank Account.
27. With respect, I agree with the view taken by Ramaprasada Rao, J. followed by the other learned Judges referred to supra, that Section 8 is only an enabling provision to prove the bona fides of the tenant and absence of wilfulness on the part of the tenant in the matter of payments of the rents. I am also of the view that the non-adoption of the procedure prescribed under Section 8(2) which could be adopted by the tenants in their discretion, does not throw any light upon want of bona fides of the tenants. In the instant case, I am also of the view that the procedure prescribed under Section 8 of the Act is only optional and not mandatory. This apart, the same view was taken by the Division Bench, in Durgai Ammal v. R.T. Mani (1989)1 L.W. 155, while reversing the decision of Ramanujam, J., in G.K. Jose v. Ramathal (1979)1 M.L.J. 372. As already indicated, Ratnam, J. has distinguished the Division Bench judgments in Durgai Ammal v. R.T. Mani (1989)1 L. W. 155, on the ground that Section 8(5) of the Act had been passed due to refusal of the landlord in that case. In Minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V. Natarajan (1994)1 L W. 340, Ratnam, J. himself has observed that it was open to the tenant to have followed the procedure laid down in the Act with reference to the deposit of rent, but instead,.the tenant had opened an account and had been depositing the rents in that account so as to make it available to the landlord whenever required. However, the learned Judge said that though it may be that the tenant was not in order in not having resorted to the provisions of the Act with reference to the payment of rents, inasmuch as the evidence of the tenant that he had deposited the amounts in a Bank account, has not been repudiated or rejected as unacceptable, there could not be any wilful default as such in the payment of rents in that case, as contended by the landlord. In the instant case also, deposit of rents had been made in the Post Office Savings Bank Account in the name of the tenants by the tenants, without resorting to the provisions of the Act. With reference to the payment of rents the tenants had produced before the court below the evidence regarding the deposits. In fact, the landlord has withdrawn the amount after obtaining orders from the Rent Controller, of the deposits made by the tenant. Therefore, it follows that there could not be any wilful default as such in the payment of rents in the instant case as contended by the learned Counsel for the landlord. Though a contrary view was taken by Nainar Sundaram, J. in Marudachala Udayar v. Dhandapani (1980)1 M.L.J. 169, by Ratnam, J. in Kalyani v. G.V. Subramaniam (1990)1 M.L.J. 29, by Thangamani, J. in N. Damodaran Naicker v. Janaki Ammal (1995)1 M.L.J. 33, Ratnam, J., in Vasavambal v. Chenniappa Gounder (1980)1 M.L.J. 207, by Sivasubramanian, J. in Muktha Bai v. Adinarayana Chetty (1989)1 M.L.J. 502 and in Umrao Bai v. Dhanalakshmi Ammal (1989)2 L W. (S.N.) 7 and by Padmini Jesudurai, J. in Selvaraj alias Subbarama Reddiar v. K. Mumtaz Begum 100 L.W. 510, with respect I am unable to agree with the views expressed by them since I am bound by the decision of the Division Bench in Durgai Ammal v. R.T. Mani (1989)1 L.W. 155.
28. Their Lordships of the Supreme Court in 5. Sundaram Pillai v. V.R. Pattabiraman , held as follows:
Thus a consensus of the meaning of the words wilful default’ appears to indicate that default in order to be wilful must be intentional deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
In this case, the landlord was not in a position to prove that default in order to be wilful, as intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom.
29. Therefore, I am of the view that the courts below have erred in holding that the premises, the subject matter of the petitions, is bonafide required by the respondent- landlord for demolition and re-constriction and that the petitioners- tenants had defaulted in payment of rents. As already seen, the courts below have failed to take into consideration the fact that rents were duly remitted in every month in the Post Office Savings Bank Account and that therefore, there cannot be any wilful default on the part of all the three tenants against whom different petitions were filed in an identical manner.
30. For the foregoing reasons, all the three revision petitions are allowed and the orders of the appellate authority and the rent controller impugned in these revisions, are set aside. However, there will be no order as to costs.