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R. Thangasami Nadar Vs. Ar.A.S. Duraiswami Nadar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 816 and 817 of 1970
Judge
Reported inAIR1971Mad428; (1971)1MLJ249
ActsMadras Buildings (Lease and Rent Control) Act, 1960 - Sections 10 and 10(2)
AppellantR. Thangasami Nadar
RespondentAr.A.S. Duraiswami Nadar
Cases ReferredRamiah Chettiar v. Sankaralinga Pillai
Excerpt:
.....compromise decree - provision for eviction provided that compromise decree not in accordance with section 10 - such compromise decree not executable. - - --if, in this case, the joint endorsement had admitted that the tenant had committed default in the payment of rent and was therefore liable to eviction, and if further an eviction order had been passed by the rent controller with a condition that it would remain suspended so long as the tenant continued to pay the rent regularly in future, and would come into force the moment he committed default it would perfectly be an enforceable order. i hereby agree that in case i fail to pay in future the rent due for a succeeding month, the petitioner shall in these very proceedings and without notice to me, take possession of the..........entered into a compromise and filed a compromise memo and in pursuance of the compromise memo the rent controller by his order dated 16-3-1965, after recording the fact that the earlier arrears of rent had been paid, directed that the tenant should pay the rent due from march 1965 at rs. 20 per mensem and rs. 35 per mensem for the two premises respectively on or before the 3rd of the succeeding month by money order and that in default, the respondent would be entitled to evict the tenant. as per the terms of the above order the petitioner was paying rents to the respondent regularly upto july 1967. but for the month of august 1967 it is alleged by the petitioner that the amounts were sent by money order but that was refused by the respondent and thereafter he took steps to deposit the.....
Judgment:
ORDER

1. These revisions filed by the tenant are directed against the orders of the District Judge. Tirunelveli, in M.C. Nos. 13 and 14 of 1968 setting aside the order of the District Munsif, Kovilpatti in E.P. Nos. 423 and 424 of 1967 holding that the petitioner had not committed willful default in payment of the rents and as such they are not liable to be evicted from the lease hold premises. The facts which gave rise to the above proceedings are as follows:

2. The respondent who is the same in both the revisions filed R. C. O. P. 40 of 1964 and 1 of 1965 against the petitioner in both the revisions on the ground that he had committed willful default in payment of the rents. When the eviction petitions came up for hearing the petitioner and the respondent entered into a compromise and filed a compromise memo and in pursuance of the compromise memo the rent controller by his order dated 16-3-1965, after recording the fact that the earlier arrears of rent had been paid, directed that the tenant should pay the rent due from March 1965 at Rs. 20 per mensem and Rs. 35 per mensem for the two premises respectively on or before the 3rd of the succeeding month by money order and that in default, the respondent would be entitled to evict the tenant. As per the terms of the above order the petitioner was paying rents to the respondent regularly upto July 1967. But for the month of August 1967 it is alleged by the petitioner that the amounts were sent by money order but that was refused by the respondent and thereafter he took steps to deposit the amount into Court. The respondent however filled E. P. 423 and 424 of 1967 for evicting the petitioner from the buildings in his occupation on the ground that he had not paid the rents as per the terms of the original order passed by the Rent Controller under Ex. A. 1 after August 1967 and that he is entitled to have the eviction order duly executed and to get delivery of possession of the properties. The execution petitions were resisted by the petitioner on the ground that the order passed on the basis of a compromise on 16th March 1965 is null and void, and that the respondent cannot have him evicted unless it is established that he has committed willful default in payment of the arrears of rent as contemplated by Section 10 of the Madras Buildings (Lease, and Rent Control) Act. The learned District Munsif dismissed the execution petitions on the ground that there was no willful default on the part of the petitioner and that as such he could not be evicted from the premises in question. The learned District Judge had, however, held that the eviction order passed on the basis of the compromise governed the rights of parties and that the respondent is entitled to have the eviction order executed if default has been committed in carrying out the directions contained therein. The question, therefore, to be considered in these revisions is whether the petitioner is liable to be evicted for not sending the amount of rent for August 1967 by money order on or before 3-9-1967 by reason of the terms of the compromise order dated 16-3-1965.

3. The learned counsel for the petitioner draws my attention to a decision of mine in C.R.P. 797 of 1970 wherein, after considering the decisions of the Supreme Court in Bahadur Singh v. Muni Subrat Dass 1969-2 SCR 432; Kaushalya Devi v. K. L. Bansal : [1969]2SCR1048 and Ferozilal v. Manmal : AIR1970SC794 it has been held that an order of eviction passed by the Rent Controller solely on the basis of a compromise entered into between the parties without applying his mind to the question whether any of the grounds of eviction set out in Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1960 existed or not, is a nullity and as such not executable. The contention of the learned counsel for the petitioner is that the order of eviction dated 16-3-1965 passed by the Rent Controller on the basis of the compromise is nullity and cannot be executed, and that the respondent cannot, therefore, have an order of eviction against the petitioner unless he establishes that there had been wilful default in payment of rent for the month of August 1967. It is stated that the August 1967 had already been deposited into court as the respondent refused to receive the same on the ground that the rent was not sent before 3-9-1967, and that in the circumstances it cannot be said that the default was willful so as to entitle the respondent to have an eviction order passed.

4. The learned counsel for the respondent, however, states that the eviction order dated 16-3-1965 passed is not based merely on the compromise, that the court has, after referring to the compromise, passed an order of eviction if the tenant commits a default in the payment of rent in future and that such an order cannot be nullified by the principle laid down by the Supreme Court in the above decisions. The learned counsel also relies on the decision of Maharajan, J., in Ramiah Chettiar v. Sankaralinga Pillai, : (1970)1MLJ483 in support of his contention that the tenant having admitted the default in payment of rent and submitted to a decree for eviction on condition that it will remain suspended so long as the tenant continues to pay the rent regularly in future, the eviction orders passed would be quite valid and enforceable, Maharajan, J. has expressed:--

'If, in this case, the joint endorsement had admitted that the tenant had committed default in the payment of rent and was therefore liable to eviction, and if further an eviction order had been passed by the Rent Controller with a condition that it would remain suspended so long as the tenant continued to pay the rent regularly in future, and would come into force the moment he committed default it would perfectly be an enforceable order. But, unfortunately, that is not the case here.' It is seen from the facts of the case before the learned Judge that the land lord applied for eviction under Section 10(2)(i) of Madras Act 18 of 1960 on the ground of wilful default in payment of rent and the Rent Controller passed the following order:

'Joint endorsement made. Petition is ordered in terms of the joint endorsement.'

and the joint endorsement was to the following effect:--

'The respondent hereby agrees that in future he will pay the petitioner regularly the monthly rent due for every Tamil month on or before the 10th of the succeeding Tamil month. I hereby agree that in case I fail to pay in future the rent due for a succeeding month, the petitioner shall in these very proceedings and without notice to me, take possession of the petition schedule premises. Judgment may be rendered in accordance with these terms.'

The question was whether the order of eviction passed by the Rent Controller on the basis of the above endorsement was valid and executable on the tenant committing default in payment of the rent in future in accordance with the joint endorsement. The learned Judge observed that there is nothing in the Act which empowers the Rent Controller to order eviction if default be committed in future that the Rent Controller, who is a creature of the statute and whose jurisdiction is circumscribed and limited by the provisions thereof, has no power to direct eviction on the basis of an anticipatory default. The learned Judge also expressed that it is not open to the landlord or the tenant to contract themselves out of the obligations under the Act or to agree to resort to a procedure not contemplated by the Act. I am of the view that the decision of Maharajan, J. supports the petitioner's contention rather than that of the respondent. In this case the compromise memo recites the fact that the tenant has paid all the prior rents and that he is agreeable for an eviction order being passed if a default is committed in payment of the rents in furture on or before the 3rd of the succeeding month. There is no finding by the Rent Controller that the tenant has committed willful default entitling the landlord to have an order of eviction. The Rent Controller has passed the eviction order only on the basis of the compromise. The reference to the payment of an earlier arrears in the compromise memo cannot be treated as an admission that the tenant had committed willful default in payment of the past arrears. Unless the Rent Controller applies his mind and finds that there has been a willful default in payment of the arrears of rent either on the basis of the evidence adduced before him or on the basis of the admission made by the tenant in the compromise memo, he is not entitled to pass a decree for eviction. It should, therefore, be held in these cases that the eviction orders had been passed by the Rent Controller only on the basis of the comprise memo. It is true that the eviction orders in these cases had been made executable only in the event of further defaults and that if an eviction order is validly passed, its operation can be made to depend on a future event. But the basic fact is that the eviction orders had not been passed for any of the grounds set out in Section 10 of the Act. Hence I find that the eviction order passed in this case is invalid and inexecutable, in view of the decisions of the Supreme Court referred to above. I am not therefore inclined District Judge that the rights of the parties are governed by the compromise order dated 16-3-1965 passed by the Rent Controller.

5. In the result, the revision petitions are allowed and the orders of the learned District Judge are set aside. But, in the circumstances, there will be no order as to costs.

6. Revision allowed.


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