IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/04/2003
Coram
THE HONOURABLE MR.JUSTICE V.KANAKARAJ
C.R.P.No.2772 of 1996 and C.R.P.No. 2773 of 1996
A.G.Krishnamurthy(Since dead)
by his L.Rs
1. Vasanthamma
2. Badrinath
3. Sukanya .. L.Rs. of Petitioner in
both the petitions
-Vs-
M. Jayaramaiah .. Respondent in both the
petitions
Civil Revision Petitions filed under Section 25 of Tamil Nadu
Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1
973 and by Act 10 of 1980) as stated therein.
!For Petitioner : Mr.M.V.Krishnan
^For Respondent : Mr.P.Subba Reddy
:COMMON ORDER
These two revisions are filed against the order dated 28.08.1996 in
R.C.A.No.3 of 1993 and 2 of 1993 on the file of the Appellate Authority
(Subordinate Judge, Krishnagiri), against the orders passed in R. C.O.P.No.11
of 1990 and 9 of 1990 on the file of the Rent Controller (District Munsif,
Hosur).
2. The averments in R.C.O.P.No.9 of 1990 are that the petitioner is a
tenant of a shop belonging to the respondent herein on a monthly rent of
Rs.300/-; that the respondent having received the rent promptly up to July
1998, issued receipts therefor; that thereafter, the respondent did not
receive the rent at all; that he did not issue receipt for the payments made
for three months; that the respondent did not respond to the petitioner’s
request to name the bank in which he could deposit the rent; that the
petitioner had paid Rs.5,000/- as advance; that on 18.4.1990, the respondent
sent a notice to the petitioner to which the petitioner sent a reply on
16.5.1990 with a Cheque for Rs.6,300/- on Central Bank; that the said reply
with Cheque had been returned by the respondent’s advocate and that therefore,
the petitioner has filed these petitions for deposit of the rent into Court
under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent) Control Act .
3. In his counter, the respondent has stated that it is not true that
the petitioner had been a tenant for 12 years and he was paying the rent
promptly; that the petitioner did not pay the rent from April 1998 i.e. a sum
of Rs.7,800/-; that these respondents maintain a receipt book and the
petitioner had signed therein for payment of rent; that the petitioner did not
take steps as enunciated under the Rent Control Act that R.C.O.P.11 of 1990
filed by these respondents is pending; that it is not true that the petitioner
had paid Rs.5,000/- towards advance; that the allegations that the reply by
petitioner together with cheque was returned by the respondent was not true
and therefore, the petition is liable to be dismissed.
4. R.C.O.P.No.11 of 1990 has been filed by the owner of shop against
the tenant on the allegations that the tenant did not pay rent from April 1998
in a sum of Rs.7,800/-; that the landlord has always been issuing receipts for
the payment of rent; that the landlord wants to start a grocery shop of his
own in the s hop in question; that the tenant has started a business for which
it was not let out; that the tenant has a shop of his own in the bus stand
which has been rented out by him to a third party; that to the notice issued
by the tenant a suitable reply had been sent and that therefore, the tenant is
liable to be evicted.
5. The tenant in his counter has raised similar allegations as had
been raised by him in his petition in R.C.O.P.No.9 of 1990 and further
contending that the demand by the landlord on his own business purposes is not
true and that therefore the eviction petition is liable to be dismissed.
6. The trial Court on consideration of the materials, allowed R.C.
O.P.No.9 of 1990 and dismissed R.C.O.P.No.11 of 1990. Aggrieved by that the
landlord filed R.C.A.Nos.3 and 2 of 1993 and the appellate authority on
re-appreciation of the evidence dismissed both the appeals with costs. Hence,
these revisions.
7. During arguments, the learned counsel appearing on behalf of the
petitioners besides bringing out the facts of the case as pleaded by parties
below would bring out the salient features stating that the rent was Rs.300/-
and the petition filed by the landlord was for eviction on grounds of wilful
default in payment of the rent by the respondent/tenant and requirement of the
premises for personal use and occupation of the landlord; that the original
landlord Krishnamurthy died and the L.Rs. impleaded to the proceedings; that
on 6.4.1988 was the last rent paid and thereafter for 26 months at a stretch
there was no payment of rent at all; that a lawyer’s notice was sent for which
a reply was sent along with a cheque for Rs.6,300/- as the rent for 20 months;
that the same was returned along with the rejoinder; that in fact the rent was
due for 26 months on that date and hence the petitioner/landlord filed a
petition for eviction in R.C.O.P.No.11 of 1990 ; that the tenant also filed
R.C.O.P.No.9 of 1990 and deposited a sum of Rs.6,300/- under Section 8(4) of
the Tamil Nadu (Lease and Rent Control) Act; that the landlord’s R.C.O.P. was
dismissed and the tenant’s R.C.O.P. for depositing the rent was allowed; that
both the appeals preferred by the landlord were also dismissed confirming the
order of the Rent Controller and hence the above Civil Revision Petitions.
8. The learned counsel continuing to argue would submit that it is
the duty of the tenant to tender the rent and not that of the landlord to go
and collect it from the tenant. Citing the remarks of the Rent Control
Appellate Authority the learned counsel would submit that the Appellate
Authority should not have confirmed the findings of the Rent Controller at
all; that Section 8(4) and 8(5) of the Act are petitions to deposit the rent
before the Rent Controller. At this juncture, the learned counsel would cite
the following judgments in support of his contentions, they are respectively
reported as follows:-
i) 2002 SAR (CIVIL) 936 (E.PALANISAMY V. PALANISAMY (D) BY LRS. &
ORS.)
ii) 1999-3 L.W.610 (TAMIL NADU MOTORS, REP. BY GOWTHAM, MADRAS-29 V.
N.LAKSHMI)
iii) (1994)II MLJ. 509 (MOHAMED ROWTHER V. RAJALINGA RAJA)
iv) (1995)I MLJ. 64 (ALAGUMANI V. K.SHANMUGHAM AND OTHERS)
v) 1997(III) CTC.39 (S.VENKATESULU V. V.CHANDRA AND 2 OTHERS)
vi) 1997(III) CTC 476 (VIJAYAKUMAR V. RAVINDRAN)
9. So far as the first judgment cited above (supra) is concerned in
paragraph 3 which is relied on by the petitioner it has been held:
” The sole question for consideration in these appeals is whether the
provisions of Section 8 of The Tamil Nadu Building (Lease & Rent Control Act),
1960 are to be strictly complied with by the tenant before he can seek benefit
under the said provisions regarding deposit of rent in the Court. In this
connection, relevant provisions of Section 8 of the Act need to be quoted:
“Section 8: (Landlord liable to give receipt for rent or advance):
Sub-section
(1)……..
(2) Where a landlord refuses to accept, or evades the receipt of, any
rent lawfully payable to him by a tenant in respect of any building, the
tenant may, by notice in writing, require the landlord to specify within ten
days from the date of receipt of the notice by him, a bank into which the rent
may be deposited by the tenant, to the credit of the landlord.
Provided that such bank shall be one situated in the city, town or
village in which the building is situated of if there is not such city, town
or village, within (five kilometers) of the limits thereof.
Explanation – It shall be open to the landlord to specify from time to
time by a written notice to the tenant and subject to the proviso aforesaid, a
bank different from the one already specified by him under this sub-section.
(3) If the landlord specifies a bank as aforesaid, the tenant shall deposit
the rent in the bank and shall continue to deposit in it any rent which may
subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid, the tenant shall
remit the rent to the landlord by Money Order, after deducting the money order
commission.
(5) If the landlord refuses to receive the rent remitted by Money Order under
sub-section (4), the tenant may deposit the rent before the Controller and
continue to deposit with him any rent which may subsequently become due in
respect of the building.”
10. So far as the second judgment cited above is concerned, it has
been held therein:
“On the question of wilful default in payment of arrears of rent, it is
settled law that mere default cannot be taken to be wilful. ‘ Wilful default’
implies a conscious or volitional failure to discharge obligations laid down
by law on a tenant, which also includes a supine indifference to these
obligations. In deciding the element of ‘wilful default’, each case will have
tobe judged on its own merits. It is also settled law that it is the duty of
the tenant to pay the rent regularly every month as enjoined in the statute
without expecting any demand from the landlady in that regard. If he finds
that the landlady is evading the receiving of rent, procedure has been
prescribed under Section 8 of the Act to issue notice to the landlady to name
the bank and if she does not name the bank, the tenant has to file an
application before the Rent Controller for permission to deposit the rent.
The omission to avail of the procedure under Section 8 would certainly entitle
the landlaldy to seek eviction for wilful default.”
11. In the third judgment cited above it has been held:
“From the deposition of the tenant as R.W.1 it could be clearly inferred that
the default was wilful. All that the tenant deposes as explanation for the
delayed payment every month is that the landlords did not demand it and hence
he did not pay. But, it is settled law that it is the duty of the tenant to
pay the rent regularly every month as enjoined in the statute without
expecting any demand from the landlord in that regard.”
12. In the fourth judgment cited above it has been held:
“The liability to pay rent accrues on the expiry of every month. To consider
whether the default is wilful or otherwise, there cannot be any hard and fasst
standard of rule. It is tobe determined on the facts of each and every case.
In this case, earlier a petition was filed for eviction on the ground of
requirement for demolition and reconstruction and at the time there was
arrears of rent for two months. Thereafter, the tenant had sent rent by money
order for four months. There was refusal to receive the rent. Even after the
filing of the petition, he had not paid the rent. This conduct cannot be
ignored. The totality of the circumstances would lead to the conclusion that
default in payment of rent was wilful. The court is unable to hold contra on
the facts of this case. It is also unable to subscribe to the theory that
once rent was refused by the landlord, for all time to come, the tenant can
remain idle and keep quiet without payment of rent and still contend that
there was no wilful default in payment of rent.”
13. In the fifth judgment cited above it has been held:
“When once the petitioner is under the threat of eviction of the ground of
wilful default, the first and foremost duty cast upon him is to pay the rent
or at least ought to have sought the permission of the Court to deposit the
rent to show his bona fide. Otherwise, the subsequent conduct in
non-depositing or non-paying the rent till date can be taken note of which
would establish the deliberate wilful default on the part of the petitioner.”
14. In the sixth judgment cited above it has been held:
“Eviction of tenant – Tenant committing wilful default not only prior to
eviction petition but also during pendency of eviction petition till appeal
was preferred – Tenant committed wilful default in payment of rent even after
adjustment of alleged deposit of advance available with landlord – Eviction of
tenant on ground of wilful default does not call for interference in
Revision.”
15. Citing the above judgments the learned counsel would exhort that
it is a case wherein the subsequent conduct is relevant which would establish
that it is a clear case of wilful default; that the tenant has not followed
Section 8(2), Section 8(3) and 8(4), but jumps to Section 8(5) which he is not
entitled to. On such arguments the learned counsel would pray to allow both
the Civil Revision Petitions setting aside the orders of the Courts below.
16. In reply, the learned counsel appearing on behalf of the
respondent would in his crisp arguments submit that there is a delay in the
payment of the rent but the said delay is neither wilful nor wanton on the
part of the respondent/tenant. The learned counsel would point out from the
materials made available on record that the rents when paid were not received
by the landlord under some pretext or other and hence the tenant was left with
no choice but to file the R.C.O.P. No.9 of 1990 and deposit the rent
initially a sum of Rs.6,300/-. At this juncture the learned counsel would
comment on the judgment reported in 1999(3) Law Weekly 284 cited by the
petitioner and would submit that it is no longer a good law and would
ultimately pray to dismiss both the Civil Revision Petitions with costs.
17. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both what
could be assessed is that the petitioners who are the L.Rs. of one
A.G.Krishnamurthy who is now deceased are the landlords of the premises in
question pertaining to which the respondent admittedly a tenant on a rent of
Rs.300/- per month. It is the case of the respondent that the landlord was
prompt in receiving of the monthly rent up to July 1998 issuing receipts for
the same but thereafter he refused to receive the rent with ulterior motive
and therefore, the respondent herein sent a notice along with a sum of
Rs.5000/- by cheque which has been returned by the landlord and therefore
tenant would come forward to say that there was no wilful default in payment
of rent since the act of the landlord refusing to receive the rents paid is
deliberate and therefore, the tenant had to file R.C.O.P.No.9 of 1990 in order
to deposit the monthly rent in the Court deposit.
18. On the part of the landlords they would come forward to allege
that the tenant was in default from April 1988 to a sum of Rs.7,800/-; that
the tenant had not acted in accordance with the legal requirements
particularly as required under Section 8(2), 8(3) and 8(4) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 without compliance of which he
cannot all of a sudden jump to resort to Sec. 8(5) of the said Act; that
moreover they require the business premises for their own occupation.
19. In order to substantiate their respective contentions in the
joint trial held by the Rent Controller on the part of the landlord the
deceased first petitioner/landlord would examine himself as the sole witness
besides marking 4 documents as Exs.P1 to P4, Ex.P1 being the counterfoil of
the receipt book. Ex.P2 dated 6.4.1988 being the signatures of the tenant in
Ex.P1, Ex.P3 dated 23.5.1990 is the reply and Ex.P4 dated 16.5.1990 is the
legal notice. On the other hand on the part of the tenant he would also
examine one witness and mark 2 documents as Exs.R1 and R2, Ex.R1 being the
legal notice dated 13.4.1990, Ex.R2 being the Central Bank cheque dated
16.5.1990. In these materials placed on record wherein in the oral evidence
adduced on the part of the sole witness on either side, they would speak of
their respective cases pleaded before the Rent Controller and the documentary
evidence marked by both the parties are also not in abundance and therefore
appreciation of this evidence placed on record, by the Rent Controller was
neither a tough job nor a time consuming affair and hence easy conclusions
have been arrived at by the Rent Controller. A careful study made into the
judgments of the authorities below from out of the fair and decretal order
passed by the Rent Controller, it could be seen that the Rent Controller has
clearly traced the facts as pleaded by parties without missing any vital point
and framing proper point for consideration as it could be seen in paragraph 7
of the fair order and again taking up the subject for his discussion, wherein
the Rent Controller would find from the deposition of the landlord that he has
let out the premises in favour of the tenant who is the petitioner in
R.C.O.P.No.9 of 1990 15 years back for commercial purposes but no tenancy
agreement got reduced into writing; that from January 1988 the tenant remitted
the rent of Rs.300/- per month, only up to March 1988 and thereafter abruptly
stopped paying rent; that only till the payment of the rent he as a tenant has
put his signature in Ex. P1 and the last signature dated 6.4.1988 has been
made in Ex.P2; that in spite of demands made on the part of the landlord
wilful default was made on the part of the tenant in the payment of rent after
April 1988 by evading responsibility; that wanting to do grocery business in
the premises let out in favour of the tenant the landlord would also express
his requirement of the premises and would mark the notice sent to the tenant
as Ex.P3 and the reply sent by the tenant in his favour dated 16.4.1990 as
Ex.P4 along with the cheque for a sum of Rs.6,300/-.
20. The Rent Controller would also see from the evidence adduced by
the son of the tenant on the side of the tenant volunteering to state that he
was only taking care of the business at Hosur though his father was at Madras;
that he knew about the tenancy agreement; that in the year 1981 the rent was
Rs.175/- and in the year 1986 it became Rs.300/-; that the landlord received
the rent at the rate of Rs.300/- per month up to April 1988 and thereafter he
refused to receive the rent for no reason assigned and hence for the rent of
21 months they sent a cheque for Rs.6,300/- followed by the Rent Control
Petition filed before the Rent Controller for deposit of the rents to be made.
21. The Rent Controller having had his own discussions on these
evidences placed on record including that of the documentary evidence which
would also go into the vital question whether the default which has been
admittedly made was wilful as it is required of the Act to be proved or on
account of refusal by the landlord in spite of the tenant having promptly come
forward to pay the monthly rents and also going through the position of law on
the subject discussing the legal propositions would ultimately arrived at the
decision not only to conclude that there is no wilful default made on the part
of the tenant but also for the other requirement of the landlord of the
building for his use and occupation the Rent Controller did not find any valid
reason lying or any genuineness on the part of the landlord in his claim and
would reject his contentions on both his claims made for wilful default in
payment of rent by the tenant and requiring the building for his own use and
occupation would pass the decree in dismissing the R.C.O.P.No.11 of 1990 filed
by the landlord and allowing the R.C.O.P.No.9 of 1990 filed by the tenant.
22. Aggrieved, the landlord has filed both the appeals in R.C.A.Nos.
2 of 1993 and 3 of 1993 as against the fair and decretal orders passed by the
Rent Controller and Court of District Munsif, Hosur before the Appellate
Authority and Court of Subordinate Judge, Hosur. The Appellate Authority also
having traced the facts and circumstances of the case as pleaded by parties
and having framed its own points for consideration and having discussed the
evidence placed on record before the Rent Controller would ultimately arrive
at the conclusion not only to dismiss both the appeals but to concur with the
decisions arrived at by the Rent Controller as per his common fair and
decretal orders passed in the manner aforementioned as a result of which the
landlord has come forward to file both the above Civil Revision Petitions on
such grounds pleaded and arguments advanced as extracted supra.
23. Needless to mention that the scope of both the above Civil
Revision Petitions are limited to the needs of Section 25 of Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 wherein this Court has to specify
as to the regularity of such proceedings or the correctness, legality or
proprietary of the decision or order passed by the Appellate Authority.
24. The judgments cited on the part of the petitioners would give
expression to the legality of certain questions involved pertaining to the
subjects dealt with by the concerned courts therein for instance in the first
judgment cited above the duties and responsibilities of the landlord and the
tenant as enunciated und er Section 8(2), 8(3) and 8(4) of the Act are
required tobe complied. Under Section 8(2) of the Act on refusal of the rent
by the landlord a notice in writing is required to be issued by the tenant to
the landlord, to specify the bank in which the rent could be deposited. Under
Section 8(3) of the Act if the landlord specifies the bank the tenant shall
deposit the rent in the bank and shall continue to deposit the rent which may
subsequently become due. Section 8(4) of the Act would enable the tenant in
case the landlord does not specify a bank to remit the rent to the landlord by
Money Order after deducting the Money Order commission and Section 8(5) of the
Act would enable the tenant on refusal of such Money Order by the landlord as
specified u/s 8(4) of the Act, to deposit the rent before the Controller and
continue to deposit the same which may subsequently become due.
25. So far as the case in hand is concerned, it should be mentioned
that the tenant has not only issued the notice but also has sent the cheque
along with the notice, but as it is alleged on the part of the tenant in the
very same manner that the landlord refused to receive the rent when it was
offered in person, he has also refused to receive the cheque issued by the
tenant, as a result of which the tenant has resorted to file R.C.O.P.No.9 of
1990 for the specific purpose of depositing the monthly rents thereafter and
excepting not to follow one more procedure that is contemplated herein that is
by sending the amount by Money Order instead of which the tenant has sent it
by means of a cheque along with the notice and there is no serious deviation
of the procedures established by law which is negligible and hence it must be
held that prior to arriving at the stage of Section 8(5) of the Act, the
tenant could only be held to have exhausted the procedures established u/s
8(2), 8(3) and 8(4) of the Act and for the landlord there is nothing much to
loiter about the compliance of Section 8 (2), 8(3) and 8(4) of the Act prior
to arriving at the decision to resort to compliance of Section 8(5) of the Act
and hence so far as this judgment is concerned it must be mentioned that on
facts since the compliance of the legal provisions are found on the part of
the tenant, it should only be held that this judgment cannot go to the rescue
of the landlord.
26. In the second judgment cited above it is only held that wilful
default implies a conscious or volitional failure to discharge obligations
laid down by law on a tenant, which also included a supine indifference to
these obligations and in deciding the element of wilful default, each case
will have to be judged on its own merits. This judgment would moreover lay
emphasis of following the procedure prescribed u/s 8 of the Act in order to
judge whether there has been the element of wilful default since it is the
duty of the tenant to pay rent regularly as enjoined in the statute without
expecting any demand from the landlord in that regard and that the omission to
avail the procedure under Section 8 of the Act would certainly entitle the
landlord to seek eviction for wilful default.
27. Since these requirements have been very carefully looked into by
both the Rent Controller and the Appellate Authority no slackness in the
compliance of the requirements of law could be found regarding the facts of
the case as it has been well answered while discussing the first judgment
above and hence there is no need for any decision to be arrived at in
adherence to the principles laid down in this judgment anew since already they
have been complied with by the Courts below.
28. In the third judgment, decision has been arrived at by the said
Court based on facts in the said case handled by the said Court particularly
on the deposition of the tenant himself as R.W.1 from which the Court inferred
that the default was wilful. This is not the same situation that is prevalent
in the case in hand and therefore this proposition held in this case becomes
not applicable to the facts of the case in hand.
29. The 4th judgment which also pertains to the point of wilful
default, would point out that it is unable to subscribe to the theory that
once rent was refused by landlord, for all the time to come, the tenant can
remain idle and keep quiet without payment of rent and still contend that
there was no wilful default in payment of rent. Though the proposition held
herein is valuable, still, this is not the condition that is prevalent
regarding the facts in the case in hand are concerned and therefore, this
proposition cannot also be applied to this case.
30. In the 5th judgment cited above also it is emphasised that the
petitioner who is placed under the threat of eviction on ground of wilful
default must resort to deposit the rent through the court which the tenant in
the case in hand has complied with.
31. The proposition held in the last judgment that not only prior to
the eviction petition but also during the pendency of the same, eviction
should not be there and this is not the position on the part of the landlord
in the case in hand and hence this judgment also becomes inapplicable to the
facts of the case in hand.
32. In short, both the Rent Controller and the Appellate Authority
have deal with the subject following the procedures established by law and
there is absolutely no room to think that either the Rent Controller or the
Appellate Authority has deviated from their legal norms in deciding the case
at their levels. They have not only traced their facts as pleaded by parties,
but also on the part of the Rent Controller regarding the facts placed on
record during trial and appreciating the case in evidence has arrived at a
valid conclusion and the Appellate Authority too, in the same manner, having
dealt with the case to the requirements of law, has arrived at its conclusion
to confirm the decision of the Rent Controller and this Court is unable to
find any patent error or perversity in approach so far as both the authorities
below are concerned in dealing with the subject in hand and since there is no
legal infirmity or inconsistency, or laxity or lacuna in a noteworthy manner,
the interference of this Court sought to be made into the well considered and
merited decisions rendered by the Rent Controller and the Appellate Authority
as well is neither necessary nor warranted in the circumstances of the case
and hence the following order:
In result,
(i) both the above Civil Revision Petitions do not merit acceptance
and they are dismissed;
(ii) the fair and decretal order dated 28.8.1996 made in R.C.A. Nos.
3 and 2 of 1993 by the Appellate Authority (Subordinate Judge), Krishnagiri
thereby confirming the fair and decretal order dated 19.2.19 93 made in
R.C.O.P.Nos.11 and 9 of 1990 by the Rent Controller( District Munsif), Hosur
is hereby confirmed;
(iii) however, in the circumstances of the case, there shall be no
order as to costs.
Index:Yes
Internet:Yes
gr.
To
1. The Rent Controller (District Munsif), Hsour.
2. The Rent Control Appellate Authority (Subordinate Judge, Krishnagiri)