Rajappa v. Johny D' Couto

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2006CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENCivil Revision Petition (NPD) No.1339 of 2003and CMP. No.14713 of 2003Rajappa... Petitioner/Tenant Vs. Johny D' Couto ... Respondent/Landlord PRAYER: Civil Revision Petition filed under Section 25 of Tamil naduBuildings (Lease and Rent Control Act) , Act 18 of 1960 as amended byAct 23 of 1973 praying for the relief as stated therein.For Petitioner : Mr.P.B.Ramanujam For Respondent : Mr.N.Prem Kumar JUDGMENTThis Civil Revision Petition has been preferred against theorder, dated 22.07.2003, passed in R.C.A.No.688 of 2001 on the fileof the VIII, Court of Small Causes at Madras, confirming the order ofeviction, dated 30.08.2001, passed in R.C.O.P.No.2187 of 1999 on thefile of the XII Court of Small Causes at Madras.2.Heard the learned counsel for the petitioner as well as therespondent.3.It is the case of the petitioner/tenant that therespondent/landlord had filed R.C.O.P.No.2187 of 1999 before the RentController for eviction on the ground of alleged 'Wilful default' inpayment of rents for the period from April 1999 to September 1999.The learned Rent Controller had allowed the petition, by his orderorder, dated 30.08.2001. Against which, the petitioner herein hadfiled an appeal before the Rent Control Appellate Authority inR.C.A.No.688 of 2001. The Rent Control Appellate Authority, by anorder, dated 22.07.2003, had dismissed the appeal confirming theJudgment and decree of the Rent Controller granting two months timefor the petitioner to vacate the premises in question. Against thesaid order of the Rent Control Appellate Authority, the presentCivil Revision Petition has been filed stating that both the RentController and the Appellate Authority had failed to follow variousprinciples laid down by the Courts under Section-10 (2) (i) of theTamil Nadu Buildings (Lease and Rent Control), Act-1960. (hereinafter referred to as 'the act') https://hcservices.ecourts.gov.in/hcservices/

4.It is the further case of the petitioner/tenant that therespondent/ landlord had miserably failed in establishing his case of'Wilful default' in payment of rent. Further, it is stated that therespondent received a sum of Rs.5,000/- as advance and he ought tohave adjusted the said amount against the allegedly defaulted rentalamount and if that had been done there would not be any default inrent much less 'Wilful default' . The petitioner contends that boththe Rent Controller and the Appellate Authority had failed to seethat the alleged default period is only from April 1999 to September1999 which represented six months rent alone and even after retainingone month's rent as advance as prescribed under Section 7 of the Act,a sum of Rs.4,250/- was available and the arrears for six monthscomes only to Rs.4,500/- and if the advance amount is adjustedtowards the alleged defaulted rent, then only a sum of Rs.250/- couldhave been the actual 'defaulted amount', which does not even amountto one full month's rent.5.Further, it has been stated by the petitioner that theAppellate Authority has not even considered the application foradditional evidence in M.P.No.783 of 2002, which was taken up forhearing along with the main appeal. The petitioner had also madepayments to cover the alleged arrears of rent at the earliest pointof time, after the filing of the rent control petition and the RentControl Authority ought to have seen that the facts of the casewarranted invoking of the proviso to Section 10 (2) (i) of the Act .On the contrary, the case of the respondent is that thepetitioner/tenant is liable to be evicted on account of 'Wilfuldefault' in payment of rent for the period from April 1999 toSeptember 1999.6.The case of the respondent is that the petitioner/tenanthas been very irregular in payment of monthly rents even after theinitiation of the rent control proceedings and the petitioner haspaid a sum of Rs.6,750/- on 13.01.2000, representing arrears of rentfrom April 1999 to September 1999. Thereafter, the petitioner hadfailed to comply with the statutory obligation as a tenant in paymentof rents every month and in that process committed further default inpayment of rents.7.The respondent/landlord states that for the subsequentmonths, the petitioner paid the rent only after receipt of notices inthe respective Section 11 (4) applications filed by the respondent inM.P.No.338 of 2000 and M.P.No.119 of 2001, which fact has beenclearly established through Exs. R-2 to R-4. The following are thedetails about the payment of rents by the petitioner after theinitiation of the RCOP proceedings. https://hcservices.ecourts.gov.in/hcservices/ S.No Date of paymentAmountPeriod1. 13.01.2000Rs.6,750/-April 1999 to December 1999.2.25.07.2000Rs.4,500/-January 2000 to June 2000 (Ex.R2).3.16.10.2000Rs.2250/- July 2000 to September 2000 (Ex.R3)4.03.07.2001Rs.3,750/-October 2000 to February 2001. (Ex.R4)5.04.07.2001 Rs.3,000/-March 2001 to June 2001. (Ex.R5)The respondent/landlord further states that the petitioner hasintentionally committed 'wilful default' in payment of rents. Afterelaborately considering all the materials available on recordincluding the subsequent conduct of the petitioner in payment ofmonthly rents the Learned Rent Controller had passed an order ofeviction. Even the Appellate Authority categorically confirmed thesaid order of eviction after elaborately discussing about the wilfuland the recalcitrant attitude of the petitioner herein. Therespondent/landlord further states that the alleged claim ofRs.5000/- by the petitioner towards rental advance has been negativedby both the learned Rent Controller and the Appellate Authority. Thepetitioner also took out a separate application in M.P.No.783 of 2002in the appeal to mark additional documents, namely, the alleged copyof lease agreement and the exchange of notices between the counsels.The Appellate Authority elaborately discussed all these aspects inthe Judgment rendered in the appeal and had categorically held thatthe said Lease Agreement is non-est in law and moreover, thepetitioner herein has failed to prove its existence as well as thevalidity. In the circumstances, the alleged claim of the petitionerrelating to the advance amount of Rs.5000/- has been negatived by theCourt.8.It is further submitted by the respondent/landlord thateven after the initiation of the eviction proceedings, the petitionerherein persistently committed 'wilful default' in payment of rentsfor the subsequent periods. The petitioner is not regular in paymentof rents even during the pendency of the R.C.O.P. The petitionerused to pay the rents only after receiving notices in the Section 11 https://hcservices.ecourts.gov.in/hcservices/ (4) applications before the Learned Rent Controller. Therefore, sucha chronic defaulter cannot seek any indulgence from this HonourableCourt. The petitioner herein having failed in both the courts belowon merits, has deliberately filed the above Civil Revision Petitionsolely with the intention to harass him. It is further stated thatthe respondent is eighty years old and the petitioner knowing fullywell that the petitioner has no case on merits, has preferred thisRevision Petition only with a view to cause severe hardship to him atthis old age.9. It has not been disputed by the petitioner that the agreedmonthly rent was Rs.750/- per month. Further, the petitioner hasalso admitted that there was default in payment of rent. However,the advance amount of Rs.5,000/- lying with the respondent/ landlordwas sufficient to cover the arrears of rent. The proviso to clause(a) of Section (1) to Section (7) of the Act states that " providedthat the landlord may receive, or stipulate for the payment of anamount not exceeding one month's rent by way of advance. Therefore,his contention is that the remaining amount of Rs.4,250/- , out ofthe Rs.5,000/- received by the respondent / landlord should have beenadjusted towards the alleged arrears of rent. He further contendedthat neither the rent controller nor the Appellate Authority hadapplied the proviso to Section 10 (2) (i) of the Act which providesthat if the rent controller is satisfied that the "tenant's defaultto pay or tender rent was not wilful, he may, notwithstandinganything contained in Section-11, grant the tenant a reasonabletime, not exceeding 15 days, to pay or tender the rent due by him tothe landlord upto the date of such payment or tender, and on suchpayment or tender the application shall be rejected.10.The petitioner has further stated that he was ready andwilling to pay the defaulted amount on the first hearing date of theRent Control proceedings. Therefore, even if there was a default inpayment of rent it would not amount to ' Wilful default' on the firsthearing date. ie. On 10.12.1999.11.The Rent Controller, after going through the evidence, bothdocumentary as well as oral, had come to the conclusion that thedefault committed by the petitioner / tenant amounts to 'Wilfuldefault' and there is no evidence to prove that an advance amount ofRs.5,000/- had been received by the respondent / landlord. The RentController has further relied on the following cases :-a.In B. Anraj Pipada Vs. V.Umavel (1998-3 L.W weekly.page 159,)"when petition to evict the tenant on the ground ofwilful default is filed, one would expect the tenant topay the rent regularly at least after initiation of theproceedings. Failure to pay rent regularly even duringthe proceedings, held. Will amount to wilful default." https://hcservices.ecourts.gov.in/hcservices/ b) The M.L.J Reports 1998 Page 748."It is needless to say that there is legal obligationon the part of the tenant to tender the rent to thelandlord month after month, whether there is any demandfor it or not. If he wants to displace this legalobligation he must prove it by acceptable documentary ororal evidence."c) 2000 (1) M.L.J Page 535.M.Balu Vs. K.Jawahar and others'The finding that the tenant has committed wilful defaultis a finding of fact and the tenant has the entire burden toprove that he has paid rent for the period. The burden has notbeen discharged by the tenant. Merely because police complaintis filed alleging that Landlord has taken away all the rentreceipts it cannot be presumed that he paid rent.'12.In all the above cases, it was held that the rent has tobe paid month after month and as held in 2000 (1) M.L.J Page 535.(M.Balu Vs. K.Jawahar and others) the subsequent conduct of thetenant can also be taken into account to decide the issue of 'Wilfuldefault' . Based on the facts available on record and the case lawscited, the Rent Controller had come to the conclusion that there was'wilful default' and aggrieved by the same the petitioner / tenanthad filed an appeal before the Rent Control Appellate Authority inR.C.A.No.688 of 2001. The Rent Control Appellate Authority by anorder, dated 22.07.2003, confirmed the findings of the RentController with regard to 'Wilful default' and ordered evictiongranting two months time for the petitioner / tenant to vacate.13.The learned counsel for the petitioner relied on the followingdecisions to support his contentions :-a) In K.Narasimharao Vs. T.M.Nasimuddin Ahmed (1996 (II) CTC78) wherein the Supreme Court held as follows :-" With regard to Section 7(2)(b), Tamil NaduBuildings (Lease and Rent Control) Act, 1960 that thelandlord is entitled to receive only one month agreedrent by way of advance and any amount paid in excess ofagreed rent of one month by way of advance shall berefunded by landlord to tenant or adjusted towardsrent, since it is only for the benefit of the tenant.The landlord is not entitled to claim eviction oftenant on ground of 'Wilful default' when he was havingexcess amount of advance . In such a case, thelandlord is bound to adjust excess amount of advancetowards rent due from tenant. https://hcservices.ecourts.gov.in/hcservices/ ......It is clear that this excess amount available with thelandlord is only for the benefit of the tenant, theliability to refund the amount to the tenant beingimmediate unless the tenant exercises the option to getit adjusted otherwise. The character of the excessamount undoubtedly is that it is the tenant's money inthe hands of the landlord for return to the tenant orfor adjustment towards the dues of the tenant, at thetenant's option. Any other stipulation in contraventionto it has no legal effect being null andvoid................... The provision of adjustment ofthe excess amount at the option of the tenant clearlyvisualise its adjustment towards the rent due from thetenant since the jural relationship envisages paymentonly of rent by the tenant to the landlord towards whichit can be adjusted."b) The above view of the Apex Court was relied upon by a learnedsingle Judge of this court in the case of In Mahalingam Vs.Pichaiammal [(2000) II M.L.J.202] wherein it has been held asfollows: "........excess advance paid to the landlord by the tenantis liable to be adjusted in the rent payable by the tenantas and when becomes due even without any demand from thetenant. " 14. On the other hand, the learned counsel for the respondentrelied on the decision reported in 1998 (2) MLJ 745, wherein thelearned single judge of this court held as follows:" a) ............ It is needless to say that there islegal obligation on the part of the tenant to tender therent to the landlord month after month, whether there isany demand for it or not. If he wants to displace thislegal obligation, he must prove it by acceptabledocumentary or oral evidence. .............. Mere paymentof the entire arrears of rent by the tenant on receipt ofsummons on date fixed for appearance of the tenant in courtwould not absolve him of disqualification which he hadalready suffered . Therefore, the petition for eviction onground of 'wilful default' cannot be sustained on thataccount." https://hcservices.ecourts.gov.in/hcservices/ b) In the case of B.Anraj Pipada Vs. V.Umayal reported in 1998 (3)LW 159, wherein this Court held as follows :-"........When the eviction proceedings have been initiatedon the ground of wilful default, one would expect thetenant to pay the rent regularly every month at least afterthe initiation of the proceedings. When the tenant hasfailed to pay the rent regularly even during the pendencyof the proceedings, then there is no doubt that his conductin paying the rent as he likes, will amount to wilfuldefault."c) Also in the case of M.Balu Vs. K.Jawahar and others (2000 (1)M.L.J 535,) wherein this Court held as follows:-"In an eviction petition on the ground of non-paymentof rent amounting to 'Wilful default'- subsequentconduct of the tenant can also be taken into account.The finding that the tenant has committed 'wilfuldefault' is a finding of fact and the tenant has theentire burden to prove that he has paid the rent forthe period."d) In the case of P.Vasuvaithiar Vs. R.M.Rangoo Chettiar (2000-2-LW.708) wherein this Court held as follows :-"Tamil nadu Buildings (lease and rent control) Act (18 of1960) ,S.10(2)(i)/Wilful default- Statutory obligation onthe part of the tenant to pay rent every month according tothe agreement – In case tenant is not paying rent as peragreement he is a defaulter- Even if he had paid rent duringthe course of proceedings it cannot absolve him forcontending that he is not wilful defaulter – When litigationis pending he should have been more careful to discharge thestatutory obligation – After taking false contention that hehad paid entire arrears the payment of arrears in the courseof proceedings shows want of bona fides and that he is"wilful defaulter"e) In the case of Raminder Singh Sethi Vs D.Vijayarangam ((2002) 4Supreme Court cases 675,) wherein it has been held as follows :-"Every tenant is obliged to pay or tender rent to thelandlord within 15 days of the month to which the rentrelates. The purpose of advance rent is to protect thelandlord from an unscrupulous tenant who may run into arrearsand vacate the premises and comfortably walk away with thearrears unpaid. The advance rent is available for adjustmentor is liable to be refunded at the time of vacating of the https://hcservices.ecourts.gov.in/hcservices/ premises except where the law or the contract between theparties provides to the contrary. " f) In the case of R.Murugan Vs. M.O.M.Abubucker reported in (2005) 5CTC 473 this High Court has held as follows :- "Following Raminder Singh Sethi Vs. D.Vijayarangam, 2002(4) SCC 675, the learned single judge of this Court hasheld that .................. the mere fact that thelandlord had with him an advance amount does not mean thatthe tenant has not committed 'wilful default' within themeaning of Section 10(2)(i) of the Act. The Courts belowhave rightly negatived the submissions made on behalf ofthe tenant that in view of the advance amount there is nowilful default. Broadly looking into the matter, it is aclear case of wilful default and the order of evictionpassed by the Courts below on the ground of wilful defaultis to be endorsed with." 15. Relying on the decided cases cited by the learned counselfor the respondent/landlord and based on the facts of the case, it isclearly found that the petitioner / tenant has committed 'wilfuldefault' as alleged in the eviction petition filed by therespondent/landlord, especially, in view of the fact that thepetiioner/tenant could not prove the existence and the validity ofthe alleged lease agreement to the satisfaction of the Rent ControlAuthorities. Therefore, in such circumstances , the claim of thepetitioner/tenant with regard to the advance amount of Rs.5000/-being with the respondent / landlord could not be established. Evenif that be true, the necessity of the respondent/landlord adjustingthe same towards the rental arrears due from the petitioner/tenantdid not arise as there is nothing shown to prove that therespondent/landlord was required to do so either in accordance withthe prescribed provisions of law or on the request of thepetitioner/tenant. Moreover, taking into account the subsequentconduct of the petitioner/tenant, it is seen that he has continued tocommit default in payment of rents even after the initiation of therent control proceedings. 16.On a careful consideration of the rival contentions putforth by the learned counsel appearing for the petitioner as well asthe respondent and on a perusal of the materials available on recordand for the reasons stated above, this court is of the consideredview that there is no legal infirmity or material irregularity in theorder, dated 30.08.2001, passed by the Rent Controller inR.C.O.P.No.2187 of 1999 and confirmed by the Rent ControllerAppellate Authority by order, dated 22.07.2003, in R.C.A.688 of 2001.Therefore, the Civil Revision Petition is dismissed as devoid ofmerits. No costs. Consequently, connected civil miscellaneous https://hcservices.ecourts.gov.in/hcservices/ petition is also dismissed. The petitioner is granted three monthstime to vacate the petition premises.ssmSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1) The VIII Judge, Court of Small Causes, Madras-104.2) The XII Judge, Small Causes Court, Madras-104.Copy To: The Registrar, Small Causes Court, Chennai-104.+ one cc to Mr.P.B.Ramanujam, Advocate Sr.No.13754.+ one cc to Mr.V.Prabakaran, Advocate Sr.No.13856.Civil Revision Petition (NPD) No.1339 of 2003and CMP. No.14713 of 2003