1. Eviction petition under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on grounds of wilful default in rent payment. (Para 1 , 2 , 3 )
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1995 Supreme(SC) 962
SUPREME COURT OF INDIA
V. Krishna Mudaliar, Appellant
Versus
Lakshmi Ammal, Respondent.
KULDIP SINGH AND S. SAGHIR AHMAD, JJ.
Civil Appeal No. 771 of 1995,
D/- 18-9-1995
Important Points
Default in payment of rent is not 'wilful' under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, if the landlord refuses to recognize the tenancy or contests it in court, thereby preventing the tenant from paying rent.
Subject
Eviction - Wilful Default in Rent Payment
Act Referred
Headnote
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Section 10 - Payment of rent - Purchase of property - Appellant was occupying said as a tenant on monthly rent of respondent filed suit for declaration and injunction against the appellant alleging that after purchase of property by appellant surrendered the possession of to him but later on trespassed into property - Appellant in the suit contended that he was a tenant in the property and had never surrendered possession of the building to anyone suit was dismissed - Appeal filed by respondent against order was also dismissed – Held, Only contention raised before us by counsel for appellant is that the default in payment of rent by appellant if any was not and as such he was entitled to benefit of proviso to Section Act - According to him Rent Controller should have given time not exceeding to pay tender rent due by him landlord - It is further contended that appellant had in fact deposited rent immediately after application was filed by respondent - Court see force in contention of counsel - Despite fact that appellant was tenant of the property in dispute under the earlier owner respondent dragged the appellant to the civil Court on the allegations that he was civil Court decided the controversy in of appellant and held that he was a tenant in the property purchased by the respondent - In reply to notice appellant stated that he could not pay the rent because the respondent never accepted him as his tenant and refused to accept rent till the proceedings court finally decided by the Civil Courts - In reply it was further stated that the non-payment of rent was not due to any fault on the part of the appellant and he was prepared to pay same in easy - Court are of the view that Courts below have not taken into consideration these facts in the right perspective - Keeping in view the peculiar facts and circumstances of this case court hold in the payment of rent on the part of the appellant was not admittedly appellant had deposited the rent in the Court of the Rent Controller within one month of the institution of the application - Appeal allowed
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Table of Contents
2. Whether the default in rent payment was wilful or if the tenant was entitled to the benefit of the proviso to Section 10(2)(i) of the Act. (Para 4 )
3. Default was not wilful as the landlord previously contested the tenancy in civil court and refused to accept the tenant, despite the tenant's willingness to pay. (Para 4 )
4. Default in rent payment is not wilful where the landlord's own conduct, such as denying the tenancy in court, prevents the tenant from paying. (Para 4 )
5. Appeal allowed, lower court judgments set aside, and the eviction application dismissed. (Para 5 )
6. When is a default in rent payment considered not wilful under the Tamil Nadu Buildings (Lease and Rent Control) Act?
A default is not wilful if the tenant's failure to pay is due to the landlord's conduct, such as denying the tenancy in civil court or refusing to accept the tenant, provided the tenant shows willingness to pay. (Para 4 )
7. What is the effect of the proviso to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act?
If the Controller is satisfied that the tenant's default in paying or tendering rent was not wilful, the Controller may grant the tenant a reasonable time, not exceeding fifteen days, to pay the rent due. (Para 3 )
JUDGEMENT :- This is tenants appeal. Respondent-landlord field eviction-petition against the appellant under Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Act) on the ground that the tenant committed wilful default in the payment of rent. The application was allowed by the Rent Controller. The appellate Court upheld the findings of the Rent Controller. The High Court dismissed the revision petition filed by the appellant.
2. The respondent purchased the premises in dispute on March 30, 1977. It is not disputed that at that time the appellant was occupying the said premisses as a tenant on a monthly rent of Rs. 60/-. The respondent filed a suit for declaration and injunction against the appellant alleging that after the purchase of the property by him the appellant surrendered the possession of the parmises to him but later on trespassed into the property. The appellant, in the suit, contended that he was a tenant in the property and had never surrendered possession of the building to anyone. The suit was dismissed. The appeal filed by the respondent against the said order was also dismissed.
3. The respondent served a notice dated August 12, 1981 on the appellant demanding arrears of rent for the period from March 30, 1977 to August 12, 1981. Section 10(2) (i) and the proviso thereunder which are relevant are as under :
"10. Eviction of tenants :- (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 to 16 :
Provided that noting contained in the said sections shall apply to a tenant whose landlord is the Government :
Provided further that where the tenant denies the title or the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for evication on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing case against the application, is satisfied-
(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or
....................................
Provided that in any case falling under Caluse(i) if the Controller is satified that the tenants default to pay or tender rent was not wilful, he may, notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender, the application shall be rejected.
(Explanation :- For the purpose of this sub-section, default to pay or tender shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the Iandlord claiming the rent.)"
It is not disputed that in October, 1981 the appellant deposited all the arrears of rent before the Rent Controller.
4. The only contention raised before us by learned counsel for the appellant is that the default in the payment of rent by the appellant, if any, was not wilful and as such he was entitled to the benefit of the proviso to Section 10(2) (i) of the Act. According to him the Rent Controller should have given time not exceeding 15 days to pay or tender the rent due by him to the landlord. It is further contended that the appellant had in fact d
