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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE AR. LAKSHMANAN
J. Jermons
Versus
Alimmal & Others
C.R.P. Nos. 1582 & 1705 of 1993 & CMP No. 13064 of 1996 in CRP No. 1705 of 1993
Decided On :Decided on : 27-03-1997
RENT CONTROL ACT - WILFUL DEFAULT - REQUIREMENT OF PREMISES FOR OWN USE - INCOME TAX ATTACHMENT - SUBSEQUENT VACATION OF ADJACENT SHOP - AMENDMENT OF GROUNDS - ADDITIONAL ACCOMMODATION - HARDSHIP - REVISION - SUBSEQUENT EVENTS - PERVERSE FINDINGS - CONCURRENT FINDINGS - SUFFICIENCY OF ACCOMMODATION - LANDLORD'S REQUIREMENT - INTENTIONAL DEFAULT - JUST AND LAWFUL CAUSE.
Fact of the Case:
The landlord filed an eviction petition on two grounds: (i) wilful default in payment of rent; and (ii) building is required for own use and occupation. The tenant paid Rs. 6,420/- on 24-2-1988, which amount represents 107 months rent. The tenant has also sent a letter along with the challan. The said challan and the letter are marked as Ex. R-4. Thereafter, the tenant has paid the rent once in two months or once in four months as could be seen from Exs. R-6 to R-17.
Finding of the Court:
The tenant has not only not paid the rent for 107 months but was using that money lawfully due to the landlord by way of rent, for his own purposes. He has committed a further default of not paying the rent regularly to the Income-tax Department even after the receipt of Ex. R-3 notice from the Department. When he is duty bound to pay the rent every month, he has failed to pay the same without any just or lawful course. Such a course of conduct manifestly amounts to wilful default as contemplated under the provisions of the Act.
Issues: 1. Whether the tenant has committed wilful default in payment of rent? 2. Whether the landlord is entitled to evict the tenant on the ground of requirement of premises for own use and occupation? 3. Whether the landlord can be permitted to amend the grounds of revision to include additional grounds under Sec. 10(3)(c) of the Act? 4. Whether the subsequent vacation of the adjacent shop by another tenant can be taken into account in considering the landlord's requirement of additional accommodation?
Ratio Decidendi: 1. The tenant's failure to pay rent for 107 months and his subsequent irregular payments constitute wilful default. 2. The landlord has a genuine requirement of the premises for his own use and occupation. 3. The landlord can be permitted to amend the grounds of revision to include additional grounds under Sec. 10(3)(c) of the Act, as the subsequent vacation of the adjacent shop by another tenant is a material change in circumstances. 4. The subsequent vacation of the adjacent shop by another tenant can be taken into account in considering the landlord's requirement of additional accommodation.
Final Decision: C.R.P. No. 1705 of 1993 filed by the landlords is allowed and C.R.P. No. 1582 of 1993 filed by the tenant is dismissed. C.M.P. No. 13064 of 1996 is ordered. However, there will be no order as to costs.
1. C.R.P. No. 1582 of 1993 has been filed by the tenant J. Jermons against the judgment of the Appellate Authority/Principal Subordinate Judge, Tirunelveli, dated 12-4-1993 in R.C.A. No. 43 of 1991, reversing the order of the Rent Controller/District Munsif, Valliyur, dated 30-4-1991 in R.C.O.P. No. 2 of 1990. C.R.P. No. 1705 of 1993 has been filed by the legal representatives of the original landlord against the judgment of the Appellate Authority/Principal Subordinate Judge, Tirunelveli, in R.C.A. No. 43 of 1991 in so far as it is against them. For the sake of convenience, the parties are referred to as landlord and tenant.
2. The landlord S.A. Sahul Hameed filed R.C.O.P. No. 2 of 1990 for evicting the tenant on the ground of wilful default in payment of rent and for own use and occupation. It is the contention of the landlord that his sons, who are respondents 2 to 4 in C.R.P. No. 1582 of 1993, are running a provision store under the name and style of Vasantham Shopping Centre at Tirunelveli and that the business has picked up well and has built up a reputation. Taking into consideration the great potential in the consumer goods market, especially household goods and other items, the landlords sons have planned and decided to expand their business with Ervadi as their headquarters to cover the last developing market in Valliyur, and other coastal areas. They required the premises for their own use for the purpose of their own business. Their requirement is bona fide. The tenant was a chronic defaulter in the payment of rent. Therefore, the eviction petition was filed by the landlord. The tenant filed a detailed counter inter alia contending that he has not committed wilful default and that the requirement is not bona fide. The Rent Controller rejected the plea of wilful default on the ground that it is only the Income-tax Department which could maintain the petition. The Rent Controller has also rejected the plea of requirement of the premises for own use on the ground that the landlord is already having a non-residential premises and hence the plea of requirement is not bona fide. The landlord preferred an appeal. The Appellate Authority rejected the claim of requirement for personal occupation. However, the Appellate Authority ordered eviction on the ground of wilful default in payment of rent. Aggrieved by the same, both parties have preferred the respective Civil Revision Petitions.
3. I have heard the arguments of Mr. R. Krishnamurthi, learned Senior Counsel for the landlords and Mr. P. Peppin Fernando, learned counsel for the tenant.
4. The landlord filed the eviction petition on two grounds viz. , (i) wilful default in payment of rent; and (ii) building is required for own use and occupation. It is not in dispute that the building leased out is a non-residential building. It is also not in dispute that the Income-tax Department has attached the rents in the hands of the tenant. The landlord had admitted that the Income-tax Department which had attached the rent is the agent of the landlord for collecting the rent. In Paragraph 4 of the eviction petition the landlord had admitted that the Income-tax Department received the rent as the nominee of the landlord. It is further averred that the Income-tax Department is only an agent for collection of the rent. Therefore, there is no dispute that the Income-tax Department is the agent of the landlord for collecting the rent.
5. The Income-tax Department attached the rent due to the landlord by the tenant by its order dated 6-3-1979. The order reads thus:
“Prohibitory order, where the property consists of debts not secured by negotiable instruments Office of the Tax Recover Officer, Tirunelveli 6-3-1979
To Sri T.M. Germans Fernandes, Hire Cycle Shop, 70, Main Road, Ervadi.
Whereas Sri S.A. Sanul Hameed, Ervadi has failed to pay arrears due from him in respect of Certificate No. 47-026-Py. 7428 dated 29-3-1978 forwarded by the Income-tax Officer, Special at Madurai amo
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