@JUDGMENTTAG-ORDER
M. Karpagavinayagam, J.@mdashTamil Nadu Motors, represented by Gowtham, the petitioner herein is the tenant. Aggrieved over the order of
the Appellate Authority ordering eviction of the petitioner by reversing the order of the Rent Controller dismissing the petition for eviction filed by
Lakshmi the landlady, the respondent herein, the present civil revision petition has been filed before this Court.
2. The landlady, the respondent herein filed a petition under Sections 10(2)(i) and 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent Control)
Act for evicting the tenant from the petition premises on the grounds of wilful default and of keeping the petition premises under lock and key. The
Rent Controller on consideration of the evidence oral and documentary adduced by both the parties, rejected those grounds holding that there is
no wilful default and the premises was not kept locked. Aggrieved by the same, the landlady filed an appeal before the Appellate Authority. After
hearing the parties, the Appellate Authority though did not disturb the finding of the Rent Controller with reference to the ground of keeping the
petition premises under lock and key, held that the tenant is liable to be evicted on the ground of wilful default and allowed the appeal. Hence, this
revision.
3. Mr. Suresh Kumar, the counsel for the petitioner/tenant would make the following submissions :
(i) Admittedly, the tenant, the petitioner herein sent the notice dated 14.6.1991 calling upon the landlady, the respondent herein to name the Bank
and account number to which the rent has to be deposited. Despite the receipt of the notice on 18.6.1991, the landlady, the respondent herein did
not choose to reply the notice, but rushed to the Rent Controller to file an eviction petition on 19.6.1991 with an ulterior motive.
(ii) The tenant having received no reply from the landlady for the notice Ex.P-9, dated 14.6.1991 issued by him, sent the entire arrears of rent for
six months by money order, the coupon is marked as Ex.R-1, which was returned with an endorsement ''party is out of station''
(iii) The tenant also went to the house of the landlady and tried to hand over the amount to her, but the said amount was not received by her. When
the tenant has taken all the steps to pay the arrears for six months to the landlady when the Agent did not turn up to collect the amount, the mere
default in making the payment of six months'' arrears cannot be construed to be wilful default.
(iv) The Rent Controller took into consideration various aspects and found that there is no wilful default. But, this well-considered judgment has
been disturbed by the Appellate Authority without going into the reasons given by the Rent Controller for concluding that there is no wilful default,
and eviction Was ordered simply on the ground that the tenant did not resort to the filing of an application u/s 8(5) of the Act by depositing the
rental arrears into court holding that default in making the payment of the rental arrears without resorting to the filing the application u/s 8(5) of the
Act would automatically be construed to be wilful default.
4. On the other hand, Mr. Krishnamachari, the learned Counsel for the landlady, the respondent herein, in justification of the impugned order of the
Appellate Authority, would strenuously contend that the order of eviction by the Appellate Authority is a well considered one, as the same was on
the basis of various decisions of this Court. He would also point out that in the absence of the explanation as to why the six months'' delay was
caused in making the payment of the rental arrears, the court has no other alternative except to come to the conclusion that the tenant defaulted in
the payment of arrears wilfully and as such, the finding given by the Appellate Authority may not be interfered with by this Court, that too, in the
revision.
5. The counsel for both the parties would cite several authorities with reference to the well established rule to be taken into account, while dealing
with the ground of wilful default.
6. 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 those
obligations. In deciding the element of ''wilful default'', each case will have to be judged on its own merits.
7. 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 payment of rent, procedure has been prescribed u/s 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 u/s 8 would certainly entitle the landlady to seek eviction for wilful default.
8. Section 8 provides that in case the landlady refuses to receive rent tendered by the tenant, the tenant can call upon the landlady to name a bank
where he can deposit it and if the landlady fails to do so the tenant can send it by money order and even if that money order is not received, the
tenant can deposit the rent before the Rent Controller. After refusal, if the tenant has not deposited into court, it cannot be straightaway said that it
is wilful default. When a landlady refuses to receive the rent sent by the tenant, it is her fault. She cannot subsequently say that the tenant has not
exercised his right given u/s 8 fully and that therefore, he must be taken to have committed wilful default.
9. 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.
10. 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.
11. To arrive at a finding that the tenant is in wilful default, the mere fact that the tenant is in arrears of rent would not be enough and the court has
to consider whether there has been intentional violation of a clear obligation to pay the rent.
12. The above principles have been laid down in the decisions mentioned below :
(1) Nagarathinam Pillai Vs. Mahadevier, . (2) S. Venkataramanaswami Ayyar Vs. S. Abdul Wahab (No. (2)), . (3) G.K. Jose v.
G.K. Jose and Others Vs. Ramathal, . (7) Rajalinga Chettiar and Others Vs. Nataraja Mudaliar, . (8) Molly Joseph alias Nish v. George
Sebastian alias Joy (1997) 1 M.L.J. 109.
13. Keeping these principles in mind this Court is constrained to go into the propriety of the impugned order passed by the Appellate Authority
directing eviction of the tenant, in this revision.
14. Though the jurisdiction u/s 25 of the Act is revisional and therefore, not as wide in scope as appellate jurisdiction, as pointed out by this Court
reported in S. Venkataramanaswami Ayyar Vs. S. Abdul Wahab (No. (2)), , the High Court in the revisional jurisdiction has to satisfy itself not
only as to the legality or regularity of the proceedings or orders before the courts but also as to their propriety. Apart from the fact that the question
whether there is wilful default or not is not a pure question of fact, the jurisdiction u/s 25 of the Act to examine the propriety of an order necessarily
involves the power to canvass the correctness of the order and examine the circumstances in which it has been passed, the propriety of the order
being something different from its legality or regularity. The powers u/s 25 are wider than those of the High Court in revision u/s 115 of the Civil
Procedure Code.
15. In the instant case, as indicated above, the Rent Controller gave a factual finding with reference to the wilful default holding that there is no
wilful default. The said finding has been disturbed by the Appellate Authority by going into the factual aspects. Though this revisional court does not
normally go into the factual aspects, once this Court finds that the finding given by the Appellate Authority is perverse and the same was rendered
without understanding the basic concept of law and by omitting the vital materials, then this Court would certainly invoke the powers u/s 25 to
correct the injustice, in order to restore the finding given by the Rent Controller.
16. In the light of the above legal situation, let me now go into the intrinsic merits of the rival contentions.
17. According to the landlady, the petitioner is a tenant in respect of a non-residential portion on a monthly rent of Rs. 350 and he did not pay the
rents for the months from December, 1990 to May, 1991, that is, for six months, According to the tenant, after the death of his father, the original
tenant, in June, 1990, he had been regularly paying the rent amounts upto November, 1990 and since the agent of the landlady who used to come
for collection did not come and issue the demand bill, which is the usual practice, he took steps to hand over the amount to the landlady, but she
did not receive the same, as there is a dispute with reference to the fixation of fair rent and thereafter, he sent a lawyer notice Ex.P-9, dated
14.6.1991 asking the landlady to name the bank to which the amount could be deposited, but despite the receipt of the notice there was no reply
and therefore, he sent rental arrears by two money orders to the landlady, and the same were returned as the party was out of station and thereby
the landlady evaded the receipt of payment and rushed to the court and as such, there is no wilful default on the part of the tenant.
18. While dealing with this aspect, it is quite relevant to appreciate an important factor. Landlady while filing an application for eviction, raised two
grounds, viz., (i) wilful default; (ii) keeping the petition premises under lock and key. while rejecting the second ground, the Rent Controller
specifically held that the petition premises was hot kept under lock and Key. This finding has not been disturbed by the Appellate Authority.
19. P.W. 1 Baskaran, the Agent of the landlady would not state in his chief-examination that the petition premises was locked. However, he stated
in the cross-examination that he did not hand over the demand bill, since the tenant had not opened the petition premises. Thus, it is clear that
though there was no substantive evidence, as held by the Rent Controller to show that the petition premises was locked, P.W.1, while giving
explanation as to why the demand bill was not issued to the tenant, said that the premises was locked. However, the finding with reference to this
aspect by the Rent Controller, confirmed by the Appellate Authority would clearly show that the petition premises was not kept by the tenant
under lock and key. As stated earlier, no demand bill issued to tenant by the agent of landlady during the relevant period.
20. In the light of this fact situation, we have to consider whether the explanation given by the tenant, the petitioner herein for not making the
payment for six months, that is, from December, 1990 to May, 1991 is true.
21. The Appellate Authority would find fault with the Rent Controller by stating that the Rent Controller wrongly came to the conclusion that there
is no wilful default, since the tenant''s father died and therefore, he could not pay. It is true that after the death of the father of the petitioner, who
died in June, 1990, the tenant paid the rent for the months from June, 1990 to November, 1990. In fact, the Rent Controller did not come to such
a conclusion mainly on that reason, which may not be factually correct, but he took into consideration the various steps taken by the tenant by
sending the notice and the money order to the landlady, the respondent herein. He also went to the landlady''s house to hand over the amount.
Therefore, the Appellate Authority could not straightaway come to the conclusion that the finding of the Rent Controller is totally wrong.
22. The serious wrong which has been committed by the Appellate Authority is this. On the basis of the various decision referred to, the Appellate
Authority jumped to the conclusion that there is wilful default mainly because the tenant has not resorted to file an application u/s 8(5) of the Act by
depositing the rental arrears into the court of Rent Controller.
23. As indicated earlier, the various decisions would clearly say that mere failure to resort to file any application u/s 8(5) of the Act would not
automatically lead to the conclusion that there is a wilful default. Moreover, in the instant case, it cannot be contended that Section 8 has not at all
been invoked by the tenant.
24. In Section 8, as stated earlier, various procedures to be followed have been provided. If according to the tenant, the landlady refused to
receive the rent, u/s 8(2) of the Act, he should have required the landlady to specify within 10 days of receipt of a notice sent by him, a Bank in
which the rent may be deposited by him to the credit of the landlady u/s 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 landlady not specifying a Bank, Section 8(4) of
the Act provides that the tenant shall remit the rent to the landlady by money order. If the landlady refused to receive the rent remitted by money
order, then the tenant may deposit the rent before the Rent Controller u/s 8(5) of the Act. It is thus clear that Section 8 of the Act makes
comprehensive provision protecting the tenant from wrongful refusal of landlady to receive the rents.
25. In the instant case, u/s 8 of the Act, the tenant has sent a notice and the money order. It is true that money order was returned as ''party is out
of station''. But, it is equally true that Ex.P-9, dated 14.6.1991, the notice sent by the tenant asking the landlady to name the bank, was received
by the landlady on 18.6.1991 and there was no reply. It is also to be noticed that immediately after receipt of the notice, on 19.6.1991 itself the
landlady filed a petition for eviction on the two grounds mentioned above even without mentioning about the receipt of the notice sent by the tenant
dated 14.6.1991. In such circumstances, I am unable to accept the contention that since tenant did not take any steps u/s 8(5) of the Act, he must
be deemed to have committed the act of wilful default.
26. There is yet another aspect of the matter P.W.1 Baskaran is the Agent. The petition premises is a shop in door No. 212, Poonamallee High
Road. The building consists of ground floor, first floor and second floor and there are 20 shops. One of the shops is occupied by the
petitioner/tenant in the name of Tamil Nadu Motors, situated in the ground floor as a third premises. P. W. 1 would state that initially the rent was
fixed at Rs. 250 R.C.O.P. No. 1764 of 1985 was filed for fixing the fair rent on 28.2.1989 it was fixed at Rs. 350. From then onwards, the
amount of Rs. 350 was regularly paid for every month. There was no default earlier. He would specifically admit that before collecting the rents for
every month from the tenants in the said building, he would use to give the demand bill mentioning the rental amount and the amount towards
electric charges. As mentioned earlier, he has not given the demand bill for the months in question. The reason given in the cross-examination by
P.W.1 that no such demand bill was delivered to him, since it was not opened by the tenant. This aspect of the evidence is disbelieved by the Rent
Controller, as indicated earlier. R.W.1 would specifically state that the amounts used to be collected for every month by the said Baskaran only
after service of demand bill mentioning the amount including of electric charges, etc. This would make it clear that though P.W. 1 Baskaran used to
collect rents from other tenants for every month, he did not serve demand bill for those six months on the tenant.
27. It is the evidence of the tenant as R.W.1 that against the fixation of fair rent at Rs. 350 an appeal was filed before the Appellate Authority,
which reduced the amount to Rs. 337. This shows that there was some dispute between the tenant and landlady during the relevant period with
reference to the fixation of fair rent. In this context, it is relevant to note the evidence of R.W. 1
which is as follows:
28. Apart from the above oral evidence, it is quite relevant to refer the documentary evidence Ex.P-9, the notice dated 14.6.1991 sent by the
tenant to the landlady. In the said notice it is stated as follows :
My client states that you are sending your clerk namely Baskaran to collect the rents and issue the receipts therefor. The said Baskaran did not turn
up from December, 1990 onwards. My client had bona fide impression that the said clerk will come and collect the rents. My client states that in
the month of June 1st week, she sent her son to pay the entire arrears of rents from December, 1990 to May, 1991 at the rate of Rs. 350
amounting to Rs. 2,100 and that when he tendered you have failed to receive the said amount with an ulterior motive. You have not issued the
rental receipt for the month of October and November, 1990 and also the difference in arrears fixed in the fair rent amounting to Rs. 4,500 paid by
my client.
29. This notice, as stated earlier, was received by the landlady and there was no reply. It is clear from the said notice that the tenant took steps to
pay the amount to the landlady, since the agent did not turn up for collecting the amount. Furthermore, the money order sent by the tenant to the
landlady on 3.7.1991, of course after the filing of the R.C.O.P. would indicate that the tenant was ready to make the payment to the landlady
without default.
30. In this context, it is noticed that when the evidence of P.W.1 as well as R.W.1 would reveal that usually demand bills will be given before
collection of rents, there is no acceptable explanation as to the failure of handing over the said demand bills to these months to the tenant. The
belated explanation by PW.1 during the course of cross-examination that it was found locked could not be taken as a ground, since the said aspect
of the evidence has been disbelieved by the authorities below. Therefore, it goes without saying that there was no demand made by the landlady
asking the tenant to pay the rents for all these months.
31. The counsel for the respondent/landlady would further submit that it is not necessary for the landlady to make such a demand and it is for the
tenant to discharge his obligation by making the regular payment of rents without default and that once such a default is made, that too, for six
months, then the failure or making the demand by the landlady to tenant would not save the tenant from the liability to face the rent control
proceedings on the ground of wilful default. There is no quarrel on this proposition.
32. When this Court questioned the counsel for the respondent, he would certainly say that there was no notice sent to the tenant before filing an
application for eviction, as it was not necessary since the tenant defaulted arrears for about six months. When the counsel for the respondent was
brought to the notice of the deposition of P.W.1, the agent of the landlady, in which it is stated that the landlady sent a notice on 5.6.1991
demanding the rental arrears for six months from. December, 1990 in the following words:
the counsel immediately recollected by saying that the notice was actually sent but the tenant evaded the receipt of the said notice.
33. The issuance of demand notice dated 5.6.1991 as stated by P.W.1 has not been mentioned in the petition for eviction,. Initially it is a specific
stand taken before this Court by the counsel for the landlady that the notice was not sent, as it was not necessary. But however, now the learned
Counsel has taken a different stand by stating that the said notice dated 5.6.1991 before filing of the R.C.O.P. was sent to the tenant who in turn
evaded. Admittedly, to substantiate the present submission by taking a different stand there is no material available on the record. For taking into
consideration of the evidence of P.W. 1, who specifically stated that notice was sent on 5.6.1991, it shall be necessary to prove the said aspect by
producing the copy of the said notice. If the receipt of the said notice was evaded by tenant and the same was returned, it is the duty of the
landlady to show to the court that demand notice, though was sent, was conveniently evaded by the tenant and if that is established, then the said
conduct would also be taken as a ground to conclude that the tenant committed wilful default.
34. But, in the instant case, as submitted by both the parties u/s 8, the tenant has sent a notice on 14.6.1991 asking the landlady to name the bank
and the same was received by her prior to the filing of the application. In such circumstances, this Court cannot come to the conclusion that the
tenant had defaulted in making the payment of arrears wilfully and wantonly. To reiterate, mere failure to invoke Section 8(5) would not be taken
to mean that Section 8 has not at all been invoked by the tenant in the instant case, as the other procedures of sending the notice to name the bank
and sending the money order to the landlady u/s 8 of the Act have been complied with by the tenant.
35. Under these circumstances, I am of the view that the Appellate Authority without proper application of mind and without taking into
consideration the vital materials as referred to above, has come to the conclusion that the tenant is liable to be evicted.
36. This matter was heard by this Court on 16.4.1999, 19.4.1999 and 20.4.1999 and posted for orders on 21.4.1999.
37. When the order was about to be pronounced on 21.4.1999, the counsel for the respondent requested to give some more time to make further
submissions. Accordingly, he was allowed to make his submissions. He would cite the authorities in Kalyani Vs. G.V. Subramaniam and Others, ,
N.S.M. Ahmad Jamalia Beevi Vs. D.N. Shah, , Sundaram Steel Co. and Others Vs. S. Lakshmi, and Jermons, J. v. Alimmal and Ors. (1997) 3
L.W. 235, in order to sustain his plea that long number of months'' arrears would be a factor to be taken note of for coming to the conclusion with
reference to the wilful default.
38. In Jermons, J. v. Alimmal and Ors. (1997) 3 L. W. 235, it is held that the payment was not made for a period of 107 months and so, it is clear
that the default was wilful. In Sundaram Steel Co. and Others Vs. S. Lakshmi, , this Court held that even after filing of the eviction, the tenants did
not pay the rental arrears for several months, that is, as many as 21 months and as such, it could be considered as a wilful default.
39. The Supreme Court in N.S.M. Ahmad Jamalia Beevi Vs. D.N. Shah, , would hold that the non-payment of rental arrears for about 23 months
amounting to Rs. 1,02,500 within a period of six weeks, in pursuance of the order of the court, was considered to be wilful. In Kalyani Vs. G.V.
Subramaniam and Others, , this Court would elaborately consider about the importance of invoking Section 8 of the Act by the tenant when the
rent was refused to receive by the landlady.
40. All these decisions, in my view, would be of no avail to the petitioner, inasmuch as in all those cases it was decided by the court concerned that
there was no sufficient cause shown by the tenant for the non-payment of the arrears in those periods.
41. In the instant case, as indicated above, though there was arrears from December, 1990 to May, 1991, for six months'' period, and the amount
was not paid to the landlady, it is a specific stand of the tenant through his plea in the counter and through his deposition that the agent did not
come to the shop for collecting the amount by serving the demand bill and that therefore, after having waited for some months he went to the
landlady''s house and tried to hand over the amount to her, but she did not receive the same and that thereafter, the tenant sent a notice Ex.P-9
mentioning all the details and requesting the landlady to name the Bank along with the details of the account number to enable him to deposit the
amount in her name and the said notice, despite the receipt, was not replied and that therefore, the tenant sent the amount through money order
which was returned with an endorsement that party was out of station. If this explanation is accepted to be genuine, then mere non-payment of the
rents for six months period would not make the court to come to the conclusion that there is a wilful default for all these months.
42. As stated earlier, the R.C.O.P. was filed after tenant invoked some of the procedures contemplated u/s 8. Admittedly, the R.C.O.P. was filed
on 19.6.1991. The notice Ex.P-9 was sent on 14.6.1991. The same was received by the landlady on 18.6.1991. Prior to that, according to the
tenant as stated in the counter and Ex.P-9 notice, he went to the house of the landlady for the purpose of handing over the money which was not
received by her. Therefore, besides the effort taken by the tenant for handing over the arrears to landlady, the tenant also has invoked Sections
8(2), 8(3) and 8(4) by following the procedures contemplated thereunder.
43. In view of the fact situation, it cannot be contended that Section 8 has not at all been invoked by the tenant. In such a situation, mere non-filing
of an application u/s 8(5) would not automatically lead to the conclusion that the tenant defaulted in making the payment of arrears wilfully or
deliberately.
44. It is pointed out by the counsel for the landlady, the respondent herein that even on the first hearing in the R.C.O.P. though the tenant had
appeared before the court, he was not ready to pay the amount. But, this is emphatically denied by the tenant. The very fact that on 3.7.1991 the
tenant sent the arrears of rent through two money orders to the landlady, who was stated to be out of station would make it clear that even after
filing of the R.C.O.P., the tenant was willing and ready to pay. So, in view of the above circumstances, there is no difficulty in coming to the
conclusion that the finding arrived at by the Rent Controller is correct and perfectly justified.
45. At the end of the argument, the learned Counsel for the respondent would submit yet another thing. He would contend that earlier he
represented that a demand notice was served on 5.6.1991 demanding the rents under the wrong impression, that now, after verification of the
records available with him, the date 5.6.1991 was not with reference to the demand of rents but with reference to the notice relating to the fixation
of fair rent and as such the earlier representation was not correct. However, it is made clear by this submission that different stand taken as
indicated earlier, has again been changed by stating that no notice was sent by the landlady demanding for the rental arrears. Though there are
various inconsistent submissions made by the counsel for the landlady, I do not propose to give any importance to the submissions because the
counsel in an anxiety to help his client, in my view, has made, such submissions even without looking into the materials available on record. So, the
best thing is to ignore the said submissions. Merely because inconsistent submissions are made by the counsel appearing for the landlady, it cannot
be contended that the case of the landlady is to be rejected and the tenant''s case is to be accepted. But the question that arises for consideration in
the instant case, as discussed earlier in detail, is whether the default for a period of six months is wilful or not and whether the explanation given for
the non-payment of the arrears for six months is acceptable or not?
46. This Court as well as the Apex Court in catena of the decisions held that it the duty of the tenant to pay the rent regularly every month as
enjoined by the statute without expecting any demand from the landlady. Therefore, as correctly pointed out initially by the counsel for the
landlady, there is no necessity on the part of the landlady to make a demand. But however in this case, as P.W. 1 would admit in his chief
examination and in the cross-examination, he would invariably give the demand bill before collecting the rent. So, when such is the plea, then this
Court has to consider whether the tenant has failed to make the payment in spite of such demand.
47. As indicated earlier, there is no demand actually made by P.W.1 during these months. R.W.1 would state-on the strength of Ex.P-9, that he
went to the house of landlady for handing over the amount of arrears, but she did not receive it and therefore, he has invoked Sections 8(2) to 8(4)
of the Act. Therefore, in my view, the explanation given, for non-payment for six months'' period and the conduct of the tenant in invoking Sections
8(2) to 8(4) would clearly reveal that he has made a genuine attempt to pay the amount even before the filing of the application.
48. So, on factual aspects, when the explanation given by the tenant is accepted to be genuine as held by the Rent Controller, then it goes without
saying that the order of the Appellate Authority holding that the tenant is liable to be evicted merely because he failed to invoke Section 8(5) of the
Act, is wrong and the same is liable to be set aside, as the reasonings contained therein, in my opinion, is perverse.
49. In the result, the revision is allowed. The order of the Appellate Authority is set aside and the order of the Rent Controller is restored. No
costs.
