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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN
P. Govindaraju
Versus
S.P. Krishnan and Others
C.R.P.Nos.2875 of 1994 to 2877 of 1994
Decided On : 07-10-1994
RENT CONTROL - WILFUL DEFAULT - PAYMENT OF PROPERTY TAX - ADJUSTMENT AGAINST RENT - WILFUL DEFAULT NOT ABSOLVED - PAYMENT DURING PENDENCY OF APPEAL - NO RELIEF FROM WILFUL DEFAULT - ADMISSION OF ADDITIONAL EVIDENCE IN APPEAL - JUSTIFIED.
Fact of the Case:
Tenant failed to pay rent and caused damage to the property. Landlord filed an application under Sec.11 of the Act for a direction to the tenant to pay the entire arrears of rent. Rent Controller directed the tenant to pay a sum of Rs.15,425.50 within a particular time. Tenant did not comply and landlord filed an eviction petition. Tenant filed an appeal before the Appellate Authority challenging the order. Pending the appeal, the landlords filed an application for admission of a document as additional evidence in I.A.No.347 of 1991. The said application was allowed and the document was admitted as additional evidence. Tenant filed a revision petition in the High Court challenging the order admitting the additional evidence. The High Court directed the tenant to pay a sum of Rs.20,000 on or before a specified date and also directing him to pay the future rent from a specified date onwards. Tenant paid the said amount of Rs.20,000 and continued to pay the future rent. The Appellate Authority dismissed the appeals filed by the tenant. Tenant filed three revision petitions in the High Court challenging the orders of the Rent Controller, the Appellate Authority, and the order admitting the additional evidence.
Finding of the Court:
The High Court held that the tenant was guilty of wilful default in payment of rent and causing damage to the property. The Court found that the tenant had expressly agreed to pay the increase in property tax and he was liable to pay the increased amount of property tax. The Court also held that the payment made by the tenant during the pendency of the appeal pursuant to a direction given by the appellate or revisional authority will not enable the tenant to plead that there was compliance with the order under Sec.11 of the Act. The Court further held that the Appellate Authority was justified in admitting the additional evidence in appeal as it was absolutely essential and necessary for the proper disposal of the case.
Issues: 1. Whether the tenant was guilty of wilful default in payment of rent and causing damage to the property? 2. Whether the payment made by the tenant during the pendency of the appeal pursuant to a direction given by the appellate or revisional authority will enable the tenant to plead that there was compliance with the order under Sec.11 of the Act? 3. Whether the Appellate Authority was justified in admitting the additional evidence in appeal?
Ratio Decidendi: 1. The tenant was guilty of wilful default in payment of rent and causing damage to the property as he had expressly agreed to pay the increase in property tax and he was liable to pay the increased amount of property tax. The fact that the tenant chose to pay the amount payable by the landlord will not enable the tenant to contend that he was making bona fide payments towards property tax and he was entitled to adjust the same on his own towards the rent payable by him, as the adjustment on his own without a bilateral agreement is not permissible in law. 2. The payment made by the tenant during the pendency of the appeal pursuant to a direction given by the appellate or revisional authority will not enable the tenant to plead that there was compliance with the order under Sec.11 of the Act. 3. The Appellate Authority was justified in admitting the additional evidence in appeal as it was absolutely essential and necessary for the proper disposal of the case.
Final Decision: All the three revision petitions filed by the tenant were dismissed.
These three revision petitions arise out of a petition for eviction viz., R.C.O.P.No.284 of 1987 filed by the respondents on the ground of wilful default in payment of rent and causing damage to the property. When the petition was pending, the landlord filed an application under Sec.11 of the Act for a direction to the tenant to pay the entire arrears of rent, which according to him amounted to Rs.24,320 being the rent due for 38 months from May, 1986 to June, 1989. The case of the tenant was that he had paid the property tax regularly and he had in fact paid in excess than what was due from him. Under the agreement of tenancy, the landlord was liable to pay a sum of Rs.988.50 by way of property tax and the tenant had agreed to pay any increase in the property tax. Taking that into account, the Rent Controller deducted a sum of Rs.8,896.50 from the total amount claimed by the landlord and directed the tenant to pay a sum of Rs.15,425.50 within a particular time. The petitioner did not comply with the order but chose to file an appeal before the Appellate Authority challenging the same. The Rent Controller passed an order of eviction as the tenant had not complied with the order directing him to pay the amount. Against the order of eviction, the tenant filed R.C.A.No.9 of 1991. The appeal against the order in the application was numbered as R.C.A.No.8 of 1991. Pending the appeal, the landlords filed an application for admission of a document as additional evidence in I.A.No.347 of 1991. The said application was allowed and the document was admitted as additional evidence. Pending the appeal, the landlords filed an application I.A.No.332 of 1991 under Sec.11 of the Act. An order was passed thereon directing the tenant to pay the arrears. The tenant challenged that order in a revision petition in thisCourtmC.R.P.No.2296of 1993. In that revision petition an order was passed on 11. 1994 directing the tenant to pay a sum of Rs.20,000 on or before 13. 1994 and also directing him to pay the future rent from March, 1994 onwards. The tenant paid the said amount of Rs.20,000 and continued to pay the future rent.
2. The main appeals before the Appellate Authority were taken up and they were dismissed. The Appellate Authority held that the tenant not having complied with the order passed under Sec.11 of the Act by the Rent Controller, was liable to be evicted and the appeals without making a deposit of the arrears of rent were not sustainable. The aggrieved tenant has now preferred these three revision petitions. C.R.P.No.2875 of 1994 is against R.C.A.No.8 of 1991 which was in turn against the order passed by the Rent Controller under Sec.11 of the Act. C.R.PNo.2876 of 1994 is against the order made in R.C.A.No.9 of 1991 which was against the order of eviction passed by the Rent Controller in the main R.C.O.P.C.R.P.No.2877 of 1994 is against the order admitting the additional evidence in the appeal in I.A.No.347 of 1991.
3. The contention of learned counsel for the petitioner/tenant is that the tenant had been bona fide paying the property tax as an occupier notice had been issued to him. It is stated by him that from 1986 onwards the tenant has been paying very regularly the entire property tax due on the property and thus a total amount of Rs.50,984.10 had been paid by 212. 1992. It is contended that even if the tenant had agreed to pay the increase in the property tax, the landlords are liable to pay the original tax of Rs.988.50 and as the tenant had paid the same, there was no question of wilful default as he was entitled to adjust the same against rent. It is submitted that even if there is no agreement between the parties for adjustment of property tax as against the rent, the tenant’s default in payment of rent will not amount to wilful default. Reliance is placed on a decision of this Court in Yousuff v. Akbar Ali, 1986 T.L.N.J. 115. On the facts, the learned Judge found in that case that there was a specific agreement
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