1. The landlady is the petitioner in this civil revision petition. She is the owner of the portion in (old door No. 3) door No. 31, Nair Iyya Pillai St., Madras 14, in the tenancy occupation of the respondent. Originally, the respondent was a tenant under the then owner one S. J. Srinivasalu Naidu on a monthly rental of Rs. 150. Subsequent to the purchase of the property by the petitioner, the respondent attorned the tenancy to the petitioner agreeing to pay monthly rent of Rs. 150. The case of the petitioner is that after the purchase of the property by her, she informed the respondent that 0he required the premises in the occupation of the respondent for her own use as she was living with her son whose family had expanded and, therefore, she wanted to move to her own premises so that misunderstandings between the petitioner and her son's family could be avoided. Stating that the down stair portion in the occupation of the respondent is convenient for her occt43ation and claiming that she does not own any other property and requires the premises in the occupation of the respondent bona fide for her own occupation, the petitioner filed K R. C. 2418 of 1980 against the respondent under S. 10(4)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act IS of 1960 as amended by Tamil Nadu Act 23 of 1973, (hereinafter referred to as the Act) praying for an order of eviction against the respondent. Besides, the petitioner also attributed wilful default in the payment of rents to the respondent for the period Feb. 198o till April 1980, and claimed that in spite of a notice issued by the petitioner the respondent evaded service of that notice and did not pay the arrears and, therefore, an order for eviction should be passed against the respondent on this ground as well.
2. In his counter the respondent admitted that the petitioner is his landlady and that he is her tenant. According to him, in Jan. 1977, he became a tenant under the then owner on a monthly rent of Rs. 150. At the time when the respondent became the tenant, the premises in question was dark and lacking in ventilation and the landlord agreed to provide facilities and received a sum of Rs. 1000 as advance. No amenities were however provided, but the landlord agreed to reduce the rent to Rs. 125 and electricity charges. The sale in favour of the petitioner in 1978 and the attornment of tenancy by the respondent in favour of the petitioner on 22-4-1978 were admitted by the respondent. However, the respondent contended that the requirement of the petitioner is not bona fide as the first and the second floors fell vacant and the petitioner did not occupy any of those floors, but had let them out. Regarding. the wilful default, in the payment of rents, the respondent contended that till Jan, 1980, rents at the rate of Rs. 125 per mensem were accepted but that when the rents for the months of February, March and April, 198o were sent at that rate, the rents were refused to be received by the petitioner. Thereupon, according to the respondent the rents were tendered in person, but were refused and the respondent claimed that he was ready and willing to remit the entire amount even on the first hearing but there was none to receive the rents. The requirement of the petitioner for her own use was disputed by the respondent as not bona fide. The respondent claimed that the failure of the petitioner to occupy the first and the second floors of the building when they fell vacant would establish that. the requirement of the petitioner was not bona fide. According to the respondent, the. petitioner owned and was in possession of several houses and, therefore, she was not entitled to an order for eviction. Another objection raised by the respondent was that his wife is employed in essential service, as a nurse and, therefore, eviction proceedings were not maintainable.
3. Before the Rent Controller (XI Judge, Court of Small Causes) Madras, on behalf of the petitioner, PW 1 was examined and Exs. PI to P6 were marked, -while, on behalf of the respondent, he was examined as, RW 1 besides relying upon Exs. R. 1 to R. 9. On a consideration of the oral as well as the documentary evidence the Rent Controller concluded that the rent payable by the respondent for the premises in his occupation is Rs. 150 per menses and that the deduction of Rs. 25 per mensem was not towards lack of amenities but from out of the advance amount given by the respondent to the predecessor-in-title of the petitioner, which was subsequently transferred to the petitioner when she became the owner of the building from the previous owner. Adverting to the question of default in the payment of rents stated to have been committed by the respondent the Rent Controller found that there was some misunderstanding between the petitioner and the respondent and there has been,. no wilful indifference on the part of the respondent in the payment of rents and, therefore, the default cannot be termed to be wilful. Dealing, with the claim of the petitioner that she bona fide requires the premises in the occupation of the respondent, the Rent Controller concluded that the requirement of the petitioner is not bona fide. Considering the question whether the respondent is entitled to the protection under the provisions of the Act on account of his wife being employed as a nurse constituting an essential service, the Rent Controller took the~ view that though the application for eviction had been filed against the respondent, his wife being employed in an essential service, the benefit of S. 10(4)(i) of the Act can' be availed of by the respondent. On these conclusions, the application for eviction filed by the petitioner was dismissed.
4. Aggrieved by this, the petitioner preferred an appeal in H. R. A. 994 of 1981, before the Appellate Authority (VI Judge, Court of Small Causes), Madras. With reference to the adverse finding recorded by the Rent Controller, against the respondent in relation to the rent for the premises, the respondent preferred an appeal in H. R. A. 539 of 1981. Both the appeals were dealt with by the Appellate Authority in a common judgment. Regarding the quantum of rent, the Appellate Authority concurred with the conclusion of the Rent Controller holding that the monthly rent payable by the respondent is only Rs. 1150 and not Rs. 125 as contended by the respondent and in this view the appeal filed by the respondent in H. R. A. 539 of 1981 was dismissed. Considering the question of wilful default in the payment of rents attributed to the respondent, the Appellate Authority was of the view that the rent for the month of Feb. 1980 was not tendered or paid and therefore, there was default in the payment of a month's rent. But that cannot be considered to be wilful, especially when the respondent had paid the entire arrears of rent on the first appearance after the filing of the application for eviction. The finding of the Rent Controller on this aspect of the matter was upheld. Regarding the bona fide requirement of the petitioner, the Appellate Authority was of the view that though the petitioner had stated that she required the premises in the occupation of the respondent for her own occupation as far back as 24-1-1979, she had not taken steps immediately and further she had omitted to occupy portions which were vacated and that would also establish that her requirement for her own use was not bona fide. The Appellate Authority did not accept the objection raised by the respondent that the benefit under S. 10(4)(i) of the Act can be claimed by the respondent as his wife was employed in essential service, and the finding contra recorded by the Rent Controller was set aside. Ultimately, both the appeals were dismissed. It is the correctness of the order in H. R. A. 994 of 1981, that is challenged by the petitioner in this civil revision petition.
5. The first contention of the learned counsel for the petitioner is that the authorities below were in error in declining to grant an order for eviction in favour of the petitioner on the ground that she bona fide required the premises in the occupation of the respondent for her own use. Elaborating this a argument learned counsel submitted that the mere delay in instituting proceedings for eviction or the omission on the part of the petitioner to occupy portions which had fallen vacant prior to the filing of the application for eviction cannot real1V be put against the petitioner to negative her bona fide requirement. On the, other hand, the learned counsel for the respondent would strenuously contend that the petitioner's requirement was not at all bona fide as she had not occupied either the first floor or the second floor when they fell vacant and, therefore, there was no use or charm in the petitioner trying to occupy the ground floor with no ventilation or light. The inability of the petitioner, to reside in the upstairs portion was characterised as a myth.
6. It is not in, dispute that the petitioner owns the building in question and that she does not own any other residential building in the city of Madras, Equally, it is not in dispute that the petitioner is residing in a rented building and not in a building of her own, The petitioner had stated in the application for eviction that she is now living with her son whose family had expanded and, therefore, she was desirous of moving to her own premises in order that misunderstandings between the petitioner and the members of the family of her son can be avoided and further that the downstairs portion would also be convenient for use by the petitioner. In the letter Ex. P-2 admittedly written by the petitioner on 24-11-1979 and received by the respondent, the petitioner had pointed out that she was living with her son and that such living was very inconvenient and, therefore, she wanted to live in her town house. The authorities below were of the view that the petitioner had not placed any material to show that misunderstandings have arisen between the family of the petitioner and her son. Apart from this, the authorities below were also of the view that misunderstandings could not have arisen because in the letter written by the petitioner to the respondent under Ex. P-2 (same as Ex. R-8) dated 24-1-79, no mention was made about any misunderstanding. In Ex. P-2, the petitioner had clearly set out that she was living with her son and that it was inconvenient for her to stay with her son. Such inconvenience might have resulted from a variety of reasons like want of accommodation, want of understanding between the members of the family of i1he petitioner and her son, daughter-in-law and others, expansion in the son's family, etc. Merely because the petitioner has not 'stated in Ex. P-2 that there were misunderstandings, between her on the one hand and her son, daughter-in-law and others on the other, it cannot be assumed that the requirement of the petitioner is not bona fide. The petitioner has clearly mentioned in EX P-2 the inconvenience caused to her by staying with her son and in the reply sent by the respondent under Ex. P-3 dated 19-24979, nothing is mentioned with reference to this, There is nothing unnatural in the petitioner desiring to live away from her son and the members of his family, especially when staying with the son has resulted in inconvenience to the petitioner. It is rather difficult to expect the petitioner to communicate to others the misunderstanding between her and her son and the members of his family. Ex. P~-2 (same as Ex. R-8) is a letter addressd by the landlady to her tenant and in that letter there was no occasion for her to make it known to the tenant about the misunderstandings between her and her son. But what is important is the inconvenience experienced has been adverted to in Ex- P-2, but has not been denied at all by the petitioner in Ex. P-3. The non-mention, therefore. of the misunderstandings in Ex. P-2 by the petitioner cannot in any manner alter the situation for it is clearly established that the petitioner who was living with her son was not in a position to get along smoothly with her son, resulting in inconvenience to her.
7. The inaction on the part of the petitioner in not having instituted proceedings for eviction against the respondent immediately after sending Ex. P-2 dated 24-1-1979 has also been relied upon by the authorities below to establish that the requirement is -not bona fide. No doubt, the application for eviction had been filed by the petitioner on 17-6-1980, while Ex. P-2 had been written by the petitioner on 24-1-1979. The mere gap between the issue of the notice and the filing of the application cannot be taken advantage of by the respondent to contend that the application is not bona fide. There is nothing which compels the petitioner to take out proceedings immediately after the issue of notice. It may even be that after the issue of a notice, the relationship between the petitioner and her son became smooth for a while and, therefore, it was not thought necessary to take action against the respondent immediately. Whatever might have been the reason, mere lapse of time between the issue of a notice wherein the requirement for personal occupation has been set out and the filing of the application for eviction sometime later cannot prove that the requirement of the petitioner is not bonafide.
8. The authorities below have relied upon the emission on the part of the petitioner to occupy the first and the second floors when they fell vacant as a circumstance to conclude that the application for eviction filed by the petitioner is not bona fide. Even according to the Appellate Authority, these portions fell vacant some months prior to the filing of the application for eviction and, therefore, the omission of the petitioner to occupy such portions as fell vacant prior to the initiating of proceedings for eviction would not really be relevant in considering the bona fides of the requirement of the petitioner. One can understand if after the application for eviction had been filed by the petitioner some portions had fallen vacant and the petitioner had not chosen to occupy those portions, in which case the subsequent event of the arising of the vacancy and the failure on the part of the petitioner to occupy the portions which had so fallen vacant may well be relied upon as circumstances establishing lack of bona fides. Such is not the case here. The arising of the vacancy in the first floor and the second floor prior to the filing of the application for eviction by the petitioner and her omission to occupy such portions as had fallen vacant would not, under the circumstances, in any manner establish that the requirement of the petitioner is not bona fide.
9. Another reason given by the authorities below to negative the claim of the petitioner is that there is nothing to show that the petitioner was put to the necessity of occupying the ground floor now in the occupation of the respondent. The Appellate Authority has merely mentioned this in passing. The evidence of the husband of the petitioner examined as P. W. 1 is to the effect that since the petitioner is not well, she cannot live in the first floor. the Rent Controller was inclined to brush aside this evidence of P. W. I on the ground that it was elicited from him in the course of his cross-examination. P. W. 1 has given reasons for the inability of his wife to live in the find or the second floor. It may be that the reason was given in the course of the cross examination of P. W. 1. But even so, that would be a good reason for the inability of the petitioner to live in the first and the second floors and her desiring to occupy the ground floor where she could move about easily without any further detriment to her health. The Rent Controller has also referred to the absence of any char- in the occupation of the ground floor by the petitioner here there is no ventilation or light. It is not for the authorities constituted under the Act to decide whether any house is airy, well ventilated and suited to the requirement of the landlord or not. If the landlady is able to establish the bona fides of her requirement in the sense that she entertained a honest desire to live in a premises of her own, then the absence of facilities or lack of ventilation, air, etc. is really not very material as it is for the landlady to live in her own premises with all its defects and faults and the authorities under the Act cannot say that merely because the premises is not airy or well ventilated, the landlady's requirement for her own use or occupation is not bona fide. Thus, the reasons given by the authorities below for negativing the claim of the petitioner for her own use and occupation are erroneous and cannot be accepted. There is nothing to indicate that the filing of the application for eviction by the petitioner is in any way motivated or has been done with any other oblique purpose. On the evidence of P. W. 1 which has not in any manner been seriously challenged, it is obvious that the petitioner is genuinely desirous of living in her own premises away from her son and the members of his expanding family in order that - she may live with her husband conveniently in the ground floor in the occupation of the respondent in her present state of health. On a consideration of all the relevant aspects, the conclusion is irresistible that the petitioner requires the premises in the occupation of the respondent for her own use and occupation.
10. The learned counsel for the petitioner next contended that even according to the Appellate Authority default had been committed by the respondent in the payment of rent at least for one month and that, in the circumstances, would undoubtedly constitute wilful default. On the other hand, the learned counsel for the respondent submitted that the respondent had been very regular in the payment of rents and the petitioner wrongfully refused to receive the rents when tendered by the respondent. and, therefore, no question of wilful default could arise at all. Earlier, it has been seen that how under Ex. P-1 dated 22-4-1978 the respondent had attorned the tenancy in favour of the petitioner subsequent to the purchase of the property by the petitioner. In that letter, the respondent had clearly Agreed to pay the monthly rent to the petitioner at the rate of Rs. 150 per mensem. it is also seen from the receipts marked as Exs. R-1, R-2 and R-3 series that the respondent had been paying the rents to the predecessor-in-title of the petitioner and subsequently to the petitioner as well. The terms of Ex. P-1 do not prescribe any time for the payment of the rent by the respondent to the petitioner and it can, therefore, be taken that the rent should be paid by the respondent to the petitioner for any month on or before the last day of the succeeding month. Most of the payments in this case have been made by the respondent to the petitioner by cheque. Till Jan. 1980, the respondent has been sending the rents to the petitioner and she had also received the rents. When the rent for the month of Feb. 1980 was sent under Ex. R-4 dated 22-3-1980, that was refused to be received by the petitioner. Again, under Ex. R-6 dated 26-4-1980, the respondent sent the rents for Feb, and March 1980 and that was also refused by the petitioner. It is not in dispute that there was no payment of rent for the month of April 1980 by the respondent. In this state of affairs, the question is whether the respondent has committed wilful default in the payment of rents. Under the terms of the letter of attornment, the respondent has to pay every month Rs. 150 to the petitioner by way of rent. There is nothing in Ex. P-2 to indicate that there was any arrangement between the petitioner and the respondent by which the petitioner should receive Rs. 125 per month as rent instead of Rs. 150 per mensem as set out in Ex. P-1. The respondent no doubt raised a defence that the rent payable was Rs. 125 per mensem. But the authorities below have concurrently rejected the case of the respondent in that regard and the dismissal of the appeal filed by the tenant in H.R.A. 539 of 1981, has also become final. No attempt was also made before this court to challenge the conclusion of the Appellate Authority that the rent was Rs. 150 per mensem. There is no dispute that the respondent had executed the letter of attornment undertaking to pay a sum of Rs. 150 per mensem to the petititioner towards rent. Thereafter, it was the duty. of the respondent to have tendered every month that amount and if there was any subsequent arrangement come to between the petitioner and the respondent in the matter of payment of rent, or adjustment of the advance of Rs. 1000, that ought to have been brought to the notice of the petitioner and suitable alterations made in the letter of attornment. In the absence of any alteration in the letter of attornment, the parties, in the matter Of payment of rents, would be governed by the terms of Ex. P-1 and it was. therefore, the plain duty of the respondent to have paid Rs. 150 every month to the petitioner. That was not done. The respondent had been sending Rs. 125 per mensem and not Rs. 150. In the light of the terms agreed to between the petitioner and the respondent and accepted by the respondent also in Ex. P-3, the respondent was under a duty to pay Rs.150 every month and not Rs. 12 5. When the respondent tendered the rent for Feb. 1980 in a sum of Rs. 125, the tender was not in order as it did not comprise of the entire rent of Rs. 150 payable by the respondent. The refusal of the tender by the petitioner was, therefore, in order. Similarly, when the rent for Feb. and March 1980 was tendered at the rate of Rs. 125 per mensem, the petitioner refused to accept it and this refusal was also quite justified. As regards the rent for April 1980, it is the common case of the petitioner and respondent that the rent for this month was never tendered by the respondent. The respondent was fully aware of his obligation to pay the rent at the rate of Rs. 150 per mensem in accordance with the tenor of the letter of attornment Ex. P-1. But the respondent has been remitting only Rs. 125 per mensem and that was not in full discharge of his obligation to pay the rent as undertaken by him. The tender of the rent at the rate of Rs. 125 per mensem was not in order and the respondent cannot, there fore, be taken to have discharged his obligation in the matter of payment of rents. The position would have been different if the respondent had sent Rs. 150 per mensem and the petitioner had declined to receive the rents so tendered. On the facts of the present case, when indisputably the rent payable by the respondent was Rs. 150 per mensem, the tender of Rs. 125 per mensern by the respondent cannot at all be taken to be a proper discharge of the obligation cast on the respondent in the matter of pay ment of the rents. The respondent was all the while fully alive to his obligation to pay Rs. 150 per mensem, but had paid only Rs. 125 per mensem. No doubt, he raised a dispute with reference to the quantum of the rent payable, but tile finding of the authorities below is adverse to the respondent. Under these circumstances, there was absolutely no justification whatever for the respondent for not having tendered Rs. 150. every month, being aware of his obligation to do so. The omission on the part of the respondent to pay the rents at the rate of Rs. 150 per mensem cannot be anything other than due to supine indifference and would undoubtedly constitute wilful default. The authorities below were, therefore in error in holding that the respondent had not committed wilful default.
11. The learned counsel for the respondent next contended that the wife of the respondent is employed as a nurse in a hospital, which has been notified as an essential service and, therefore, the protection under S. 10(4)(i) of the Act would be available to the respondent also. Reliance in this connection was placed by the learned counsel for the respondent on the decision in Hemalnath v. Kasthuri, : (1975)2MLJ25 . On the other hand, the learned counsel, for the petitioner submitted that the tenant is only the respondent and the fact that the wife of the respondent is employed in an essential service would not enable the respondent to take advantage of the benefit under S. 10(4)(i) of the Act. Support for this was sought to be derived from the decision in Natesan v. Santhalakshmi. : (1971)2MLJ164 .
12. Section 10(4)(i) of the Act in so far as it is relevant for the present purposes runs as under-
'No order for eviction shall be passed under sub-see. (3) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment. which has been so notified.'
The protection afforded is to the tenant who is engaged in any employment or class of employment notified as an essential service by the Government for the purposes of the section. There is no dispute in this case that the. respondent is the tenant and he is not engaged in any essential service. Plainly, therefore, the protection under S. 10(4)(i) of the Act will not be available to the respondent herein. In Natesan V. Santhalakshmi, (1971) 2 MLJ 1 4. an application for an order of eviction was resisted by the tenant on the ground that his daughter was employed in the notified essential service and it was held that the tenant would not be entitled to any protection as the daughter of the tenant may at best be a member of the family of the tenant and not the tenant for the purpose of the proceedings. Similar is the position. in this caw where by no stretch of imagination the wife of the respondent can be considered to be a tenant so long as the respondent is there as the actual tenant. S. 2(8) of the Act ' defines a 'tenant' as a person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant etc. From this definition, it is at once obvious I that when the respondent as a person by whom rent is payable for a building is alive, his spouse, son, or daughter, or other legal representatives cannot claim rights as a tenant. Thus, the respondent cannot be heard to project his claim for the benefit of S. 10(4)(i) of the Act on the ground that while he is the tenant, his wife should also be considered as a ten .ant who is employed in an essential ser vice and, therefore, the benefit of S. 10(4)(i) of the Act could be invoked. Is Remainath v. Kasthurl, : (1975)2MLJ25 relied on by the learned counsel for the respondent, an order for eviction passe4l in favour of the landlady an the ground that she bona fide required the premises for her own use was challenged on the ground that the tenant was employed in an essential service but that the landlady was not go employed and, therefore, she was not entitled to have the tenant vacated from the premises in his occupation. In dealing with this question, this court took the view that though .the protection conferred under S. 10(4)(i) of the Act on a tenant is taken away in cases where the, landlord also. Belongs to a notified essential service yet, there is no justification for giving a restricted meaning to the word 'landlord' defined in S. 2(f) of the Act, and the expression 'landlord' should be so construed to include a landlady's husband also, who was engaged in an essential service and, therefore, the order for eviction cannot be. takes exception to. In so holding, reliance had been placed upon the definition of the word 'landlord' in S. 2(6) of the Act. It was also pointed out that it would be contrary to established customs and usages to hold that the ex-emption to Which the husband is entitled is not available to the wile as he would have been also a landlord entitled to receive the rents on behalf of the wife and if an application was Ailed on, that tooting, the husband could have claimed as landlord and defeated the claim for exemption. There, the Court was dealing ,with case of the availability of the benefit of exemption in favour of a landlady, whose husband was employed in an essential service. On the other hand, in the present case, the respondent as a tenant has urged that his wife employed in an essential service should be treated as a tenant for the purpose of availing the benefit conferred under S. 10(4)(i) of the Act. Apart from this the very basis of the. decision appears to me to proceed on an incorrect extension and application of the definition of 'landlord' in S. 2(6) of the Act. In that case, if the landlady was not in essential service and her husband had merely collected the rents, then the collection could have been only on behalf of the landlady, who was the person entitled to receive the rents under the Act, so that such collector of the rents cannot be brought within the scope of the expression 'landlord' under S. 2(6) of the Act in the presence of the landlady as well. On the construction placed in that decision, in respect of the same tenant, there would be two landlords,. namely, one the landlady and the other, her husband in an essential service. If similar considerations are to be applied to the present case, then that will result in two presons, namely, the respondent and his wile in an essential service being tenants at the same time of the premises under the petitioner. It is rather difficult to accept such a situation, based on an illogieal extension and application of the definition of the term 'tenant' occurring in.S. 2(3) of the Act. Further, it has to be remembered that in this case having regard to the definition of 'tenant', the surviving spouse would coming only after take demise of the tenant and during lifetime, the spouse, or the too or the daughter or other legal representatives, cannot claim the status of a tenant at, all. To the situation in the present case, the decision in Natesan v. Santhalakshmi, : (1971)2MLJ164 would be applicant and not in the case Humanist v. Kashrus, : (1975)2MLJ25 , relied upon by the learned counsel for the respondent. Consequently, the Appellate Authority was quite in declining to countenance the claim of the respondent that as wife wag employed in an essential service, the benefit of the exemption under -S 10 (4) (1 of the Act would be available.
12A. Having regard to the conclusions arrived at earlier m the questions of bona fide requirement of the petitioner and the wilful default committed by the respondent in the payment of rents, the order of the authorities below dismissing the application for eviction cannot be sustained and is set aside and there will be an order of eviction against the respondent. The civil revision petition is therefore allowed with costs throughout.
13. The learned counsel tar the respondent submitted that if this court thought fit to pass an order of eviction against the respondent, the respondent may be granted adequate time to vacate and hand over vacant possession of the premises in his occupation to the petitioner. The learned counsel for the petitioner agreed to grant four months time to the purpose, Accordingly, the respondent will have four months time from today to vacate and hand over vacant Possession of the premises in his occupation to the petitioner herein, but, this will be subject to the respondent filing an affidavit of undertaking within one week from this day to that effect, failing which the order of eviction can be executed forth with.
14. Petition allowed.