Gunalan Vs. S.Murugamanickam - Court Judgment

Civil revision petition preferred against the order dated 11.2.2008   passed by the Principal Subordinate Judge,  (Appellate Authority), Salem, in R.C.A.No.9 of 2007 confirming the order of eviction dated 9.1.2007 passed by the First Additional District Munsif (Rent Controller), Salem, in R.C.O.P.No.65 of 2005.

G.RAJASURIA, J.

ORDER

Inveighing the order dated 11.2.2008   passed by the Principal Subordinate Judge,  (Appellate Authority), Salem, in R.C.A.No.9 of 2007 confirming the order of eviction dated 9.1.2007 passed by the First Additional District Munsif (Rent Controller), Salem, in R.C.O.P.No.65 of 2005, this civil revision petition is focused.

2. A recapitulation and r esume of the germane facts absolutely necessary for the disposal of this revision would run thus:

(i) The respondent/landlord filed the R.C.O.P.No.65 of 2005 as against the revision petitioner/tenant for obtaining delivery of possession of the three premises bearing door Nos.77, 78 and 80-A on the ground of wilful default .  Whereupon the revision petitioner/tenant filed counter and resisted the matter.

(ii) During enquiry, the landlord examined himself as P.W.1 and marked Exs.A1 to A3.  On the tenant's side, the revision petitioner/tenant herein examined himself as R.W.1 along with R.W.2 and marked Exs.B1 to B36.

(iii) Ultimately the Rent Controller ordered eviction in respect of the premises bearing Door Nos.78 & 80-A and dismissed the RCOP in respect of Door No.77 on the ground that it was under the occupation of a different person other than the revision petitioner-Gunalan herein.

(iv) Being aggrieved by and dissatisfied with the said order of the Rent Controller, the tenant Gunalan preferred appeal before the Rent Control Appellate Authority, for nothing but to be dismissed, confirming the order of eviction passed by the Rent Controller.

(v) During the pendency of the appeal, additional evidence was let in on the side of the tenant and documents Exs.B37 to 41 were marked.

3. Being aggrieved by and dissatisfied with the order and judgement of the Rent Controller as well as the Rent Control Appellate Authority, this revision has been focused on various grounds.

4. The learned counsel for the revision petitioner, by placing reliance on the grounds of revision, would develop his arguments thus:

(i) The landlord should stand or fall on his own averments in his petition; he cannot pick holes in the case of the respondents and try to achieve success in the litigative process.

(ii) The Land Lord would  categorically aver and assert as though the total rent was Rs.2,000/- per month in respect of the three premises and that ever since 1999, there was non payment of rent and consequently would  pray for eviction on the ground of  wilful default .  However, he failed to prove his case.  In one breathe he would state that the rent was lastly paid during the year 1989 and that the rent was Rs.289/- per month. In such a case, it is totally unknown as to how it would lie in the mouth of landlord to contend that the rent got enhanced from Rs.289/- p.m. to Rs.2000/- per month and that there was default in payment of such rent.  Wherefore, there was total incongruity in the plea of the landlord, which the Courts below should not have countenanced and upheld and ordered eviction.

(iii) The tenant voluntarily and volitionally filed RCOP during the year 1994 and started depositing the rent in view of the non-co-operative attitude on the part of the landlord, who refused to receive the rent.  In fact, the landlord virtually abandoned the premises.  Consequently, in order to safe-guard the tenant s possession in the demised premises, the tenant himself paid tax to the Municipality, which is evidenced by the various exhibits marked before the Rent Controller.

(iv) Both the Courts below, without adverting to all these salient features, simply ordered eviction, warranting interference in revision.

(v) The definition of  wilful default' was scarcely understood by both the Courts below.  Simply because there was some non-payment of rent for certain period, there is no presumption that there was  wilful default.

5. The learned counsel for the petitioner also would cite the following decisions of the Honourable Apex Court:

(i) (2000) 1 Supreme Court Cases 451   C.CHANDRAMOHAN V. SENGOTTAIYAN (DEAD) BY LRS AND OTHERS;

(ii) (2000) 3 Supreme Court Cases 282   CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS.

Placing  reliance on those decisions, the learned counsel would pray for setting aside the order of eviction passed by the Rent Controller as affirmed by the appellate authority and for dismissing the RCOP itself.

6. Per contra, in a bid to torpedo and pulverize the arguments as put forth and set forth on the side of the revision petitioner/tenant, the learned counsel for the respondent/landlord, by inviting the attention of this Court to the various portions of the evidence, would develop his arguments, which could pithily and precisely be set out thus:

(i) Even the admitted rent of Rs.90/- p.m. per premises was not paid and it cannot be, but described as wilful default  in view of the catena of decisions of the Honourable Apex Court.

(ii) No doubt, the tenant of his own accord resorted to deposit the rent in the Rent Control Court, by filing the RCOP, which was not brought to the knowledge of the landlord at all.   Even then he was not regular in paying such rents.

(iii) Exhibits filed on the side of the tenant would exemplify and demonstrate, display and convey that he was not consistent in paying the rents. Over and above that pendent lite also he was not regular in paying the rents. 

7. The learned counsel for the landlord would submit that, from his understanding,  there was no payment of rent ever since 2010 and accordingly, he would pray for the dismissal of the revision petition.

8. The points for consideration are as under:

(i) Whether there is any perversity or illegality in the orders passed by both the Courts below on the ground of  wilful default , in view of the fact that even the admitted rent of Rs.90/- p.m. per premises, so to say, relating to the premises bearing Door Nos.78 and 80-A, was not paid and whether from that, the element of wilfulness in non-payment of the rent could be perceived?

(ii) Whether the 'onus of proof' is on the landlord or the tenant to prove their respective pleas so far this case is concerned?

9. Both these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with each other.

10. I would like to fumigate my mind with the following decisions of the Honourable Apex Court in addition to the decisions cited on the side of the landlord.

(ii) (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], certain excerpts from it would run thus:

"4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.

5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal - and M. Bhaskar v. J. Venkatarama Naidu 2.

6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p.249, para 8)

8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A (4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.

7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.

8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."

(ii) 1997-2-L.W.571-S.SUNDARARAJAN V. S.A.VISWANATHAN CHETTY AND ANOTHER, CERTAIN EXCERPTS FROM IT WOULD RUN THUS:

11. . . . . .It is thus seen that Sec.8(5) of the Act, which had been resorted to by the petitioner in this case in H.R.C.No.569 of 1981, is intended to protect the tenant from th consequences of non-payment of rent amounting even to wilful default owing to the refusal by the landlord to receive the rent when tendered.  Under Sec.9(2) of the Act, the amount deposited under Sec.8(5)of the Act may be permitted to be withdrawn by the person held by the ent Controller to be entitled to the amount on an application made by such person, to the Rent Controller on that behalf.  It is thus seen that the obligation of the tenant to pay or tender the rent within fifteen days after the expiry of the time fixed in the agreement of tenancy or in its absence, by the last day of the month next following that for which the rent is payable is intended to be fulfilled by resort to Sec.8() of the Act and the deposit of the rents, refused to be received by the landlord when remitted by money order as well as that which may subsequently become due under Sec.8(5) of the Act, when paid out to the landlord under Sec.9(2) of the Act, would ensure the payment of the rent regularly by the tenant as well as the receipt thereof by the landlord on being paid out to him by an order of the Controller under Sec.9(2) of the Act.  It is therefore, obvious that it is not merely for the sake of a deposit in to Court Sec.8(5) of the Act is intended, but it also serves to very vital and important purpose in that by resorting to a deposit of rents under Sec.8(5) of the Act after obtaining the orders of the Controller in that regard, the rents refused to be received in the usal course by the landlord are not only paid by the tenant, but also made available to the landlord, so that a ground for eviction under Sec.10(2)(i) of the Act does not arise, in the event of the deposit of rents being made without default. . . . .

11. A mere poring over and perusal of those excerpts including the whole of those judgments would amply make the point clear that the tenant should not have mala fide intention in depositing the arrears of rent straight away in Court by invoking Section 8(5) of the Act, so as to put the landlord into discomfiture in getting payment out of the Court.  But on the other hand, in the event of the landlord refusing to receive the rent, the tenant should call upon the landlord to specify the name of the bank so as to deposit the rent and on such failure on the part of the landlord, the tenant should send the rent by Money Order depressed by the money order commission.  If the Money order amount is refused to be received by the landlord, then lastly the tenant should take steps to deposit it in Court by invoking Section 8(5) of the Act.

12. A mere running of the eye over those precedents would leave no doubt in the mind of the Court that the paramount duty of the tenant is to see that meticulously he adheres to the procedure contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act for the purpose of paying the rent.

13. In this case, voluntarily the tenant approached the Rent Controller and started depositing the rent.  Ex.B41 is worthy of being reproduced hereunder for ready reference. 

"Details of items Rs.

734/21.2.95  11687/-

921/8.9.95  1750/-

412/27.9.95  2100/-

876/19.6.96  1050/-

810/11.2.97  1750/-

144/26.6.97  1750/-

573/31.3.98  1750/-

901/26.2.99   955/-

120/9.12.99  2100/-

848/12.4.2000  1750/-

806/28.2.01  2800/-

1227/8.11.06  3500/-

440/10.11.06  2100/-

351/21.5.07  1050/-

469/16.8.07  1050/-

606/5.11.07  1050/-

A mere perusal of the said exhibit would show that there was no consistency in deposing the rent. 

14. In this connection the Honourable Apex Court s view is that if a tenant fails to adhere to the provisions of the Rent Control Act, then  wilful  element on the part of the tenant in not paying the rent could be perceived.

15. It is not the case here that the tenant did not pay the rent for one or two months. The extract would reveal that for even years together, so to say, for a period of 4= years rent was not at all deposited by the tenant in Court as per the order of the Rent Controller.  In such a case, I am at a loss to understand as to how the tenant could contend that there was no  wilful default  in paying rents.

16. At this juncture I recollect and call up the following maxim:

 'Acta exteriora indicant interiora secreta'

 External acts indicate undisclosed thoughts.

17. So it is by the overt act of the tenant, his intention could be understood. There was unexplained delay of 4= years in depositing the rent before the Rent Controller even after obtaining order from the Rent Controller for depositing the rent.  The RCOP for eviction was filed only on 28.11.2005; whereas, anterior to that, there were huge arrears.

18. It was the contention on the side of the tenant that, as revealed by Exs.B1 to B4, B28 and B32, there were payments of house tax and those amounts should be adjusted. 

19. This Court, for the purpose of rendering substantial justice, applied its mind on that.  The tax paid as per those exhibits would not constitute even 1/4th of the actual annual rent.  When that be the position, I am at a loss to understand as to how the tenant could contend that because he paid house tax, he should not be looked askance at for he having not paid or deposited the rent regularly.  It is therefore a clear case of wilful default having been committed by a tenant and both the Courts below au fait with law and au courant with facts held that there was  wilful default  on the part of the tenant in not paying the rent, warranting no interference in the revision.

20. Accordingly, I am of the view that there is no substance in the revision and it is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.

21. On hearing this order, the learned counsel for the revision petitioner/tenant herein would pray for one year time to vacate the premises; whereas, the learned counsel for the landlord would submit that six months' time, at the most, could be granted, subject to payment of rent regularly, including the arrears.

22. I am of the view that six months' time could be granted for the tenant to vacate the premises subject to payment of the entire arrears and also the future rent regularly, even at the rate of Rs.90/- per premises and accordingly it is ordered.  An affidavit shall be filed to that effect within 15 days from this date.