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1995 Supreme(Mad) 478
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Mohammed Zackaiya rep. by Power Agent A.M. Yunus
Versus
Abdul Aziz
C.R.P. No. 2099 of 1991
Decided On :Decided on : 28-04-1995
For the Petitioners:K. Chandramouli, Senior Counsel for Messrs. K. Venkatasubramanian & A. Muthukumar, Advocates.
For the Respondent:Thirumaran, Advocate.
The tenant is liable to be evicted for wilful default in payment of rent even if the default is for one month.
Headnote:
TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960 - SECTION 10(2) - EVICTION - WILFUL DEFAULT IN PAYMENT OF RENT - ADVANCE RENT - ADJUSTMENT - INTERPRETATION.
Fact of the Case:
Landlords filed an eviction petition against the tenant on the grounds of wilful default in payment of rent, demolition and reconstruction, and denial of title. The Rent Controller ordered eviction on both grounds, but the Appellate Authority reversed the decision and dismissed the petition. The landlords filed a revision petition in the High Court.
Finding of the Court:
The High Court held that the tenant had committed wilful default in payment of rent and was liable to be evicted. The court rejected the other grounds for eviction.
Issues: 1. Whether the tenant had committed wilful default in payment of rent? 2. Whether the landlords were entitled to evict the tenant on the ground of demolition and reconstruction? 3. Whether the tenant had denied the title of the landlords?
Ratio Decidendi: 1. The court held that the tenant had committed wilful default in payment of rent because he had not paid the rent for the months of April and May 1987 despite receiving a notice from the landlords. The court rejected the tenant's explanation that he had tendered the rent to the landlords' counsel but was refused, as well as his explanation that he was not well and could not pay the rent in time. 2. The court held that the landlords were not entitled to evict the tenant on the ground of demolition and reconstruction because they had not proved the physical condition of the building. The court noted that the landlords had not filed an Engineer's Report or any other evidence to prove the condition of the building. 3. The court held that the tenant had not denied the title of the landlords because the statement in the counter was not made intentionally and the landlords had waived the ground by accepting rent from the tenant.
Final Decision: The High Court allowed the revision petition in part and held that the tenant was liable to be evicted only on the ground of wilful default in paying the rent. The court gave the tenant one month to surrender vacant possession of the building.
1. Landlords in R.C.O.P. No. 22 of 1987, on the file of the House Rent Controller (District Munsif), Mayiladuthurai, are the revision petitioners.
2. The petition was filed by the petitioners for eviction of the respondent on the ground that the tenant has committed default in payment of rent for the months of April and May 1987 wilfully and that the building requires immediate demolition and reconstruction.
3. In the counter filed by the respondent, he stated that the first petitioners father used to collect the rent and he has purposely avoided collecting rents for the months of April and May 1987, and, according to him, it is not wilful and he was paying the rent to the petitioners counsel before the Rent Control Court. The claim for eviction on the ground of demolition and reconstruction was also disputed. According to him, the building is in good condition and he has repaired the same.
4. The Rent Control Court, after taking evidence, held that the petitioners are entitled to succeed and consequently ordered eviction on both the grounds.
5. When the matter was taken in appeal as R.C.A. No. 17 of 1990 on the file of the learned Subordinate Judge, Mayiladuthurai, the Rent Control Courts decision was reversed, and the Petition was dismissed. It is against the conflicting decisions, the landlords have come to this Court in Revision.
6. At the time when this Eviction Petition was filed, an earlier petition for eviction, namely, R.C.O.P. No. 45 of 1984 was pending before the Rent Controller. That petition was dismissed for default and restoration petition was pending. There, the ground of eviction was that the building was required for the own use of the landlords. We find that the tenant has deposited rent upto March 1987 in that proceeding.
7. The learned counsel put forward three submissions before this Court (1) The tenant has committed wilful default in not paying the rent for the months of April and May 1987. According to him, he issued notice on 20.4.1987 evidenced by Ex. A-9 demanding vacant possession of the building on the ground of demolition and reconstruction. In that notice, nothing was stated about the arrears of rent. On that date, no amount was due towards arrears of rent. The same was replied by the tenant as evidenced by Ex. B-19 on 8.6.1987. By that time, the rent for the months of April and May 1987 became due. But nothing was stated about the rent, nor was the rent sent along with the reply. Even though the tenancy was sought to be terminated by Ex. A-9 notice, to avoid eviction, rent should have been paid. It is further contended that the explanations for not paying the rent for the above months are contradictory. In the pleadings, one explanation is given, while in evidence a different explanation is put forward. Since it is inconsistent, the conclusion of the Rent Controller that the non-payment is wilful has to be restored. (2) The condition of the building is such that it required immediate demolition and reconstruction. According to him, in the earlier proceeding itself, the tenant has admitted that the building is used as a conservancy lane and it is unfit to be used for occupation. In view of the said admission, the eviction on that ground also should have been allowed. (3) In the counter in this case, the tenant has denied title of the landlord, and in view of the decision reported in A.I.R. 1989 S.C. 2187 = 1990-1-L.W. 572 (S.C) ( Majarti Bubba Rao v. P.V.K. Krishna Rao ), eviction should have been allowed on that ground also, without directing the landlords to file another eviction petition.
8. How far the above submissions can be legal, is considered below.
9. Let me first take up the question regarding the ground of denial of title.
10. The learned counsel for the petitioners brought to my notice the defence taken by the tenant in this case.
11. In the counter, in paragraph 6, it is stated:—
“This respondent also further submits that the settlement deed appears to be a sham and nomi
