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Sivagami Ammal and ors. Vs. P.S. Elango - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ423
AppellantSivagami Ammal and ors.
RespondentP.S. Elango
Cases ReferredP.S. Elango v. Sivagarni Amtnal and
Excerpt:
- - inability to pay the rent is a very strong circumstance indicating that the default was wilful and that the tenant is not in a position to discharge his obligation to his landlords......the landlord had already filed another petition for eviction which has given rise to this present civil revision petition for arrears from november, 1975 to september, 1976. when this order in the earlier civil revision petition was produced ' before the appellate authority, it held that the high court had condoned the delay and the default in payment of rent on the part of the tenant and therefore, there was no wilful default in this case. consequently, the eviction order was set aside and the appeal was allowed. the landladies are aggrieved by this order and have come on revision.2. the short point for consideration in this petition is whether the order passed in c.r. p. no. 1325 of 1977 has any relevance to the present petition. it is common ground that the previous c.r.p. no. 1325.....
Judgment:
ORDER

T.N. Singaravelu, J.

1. The landladies are the revision petitioners who filed the petition for eviction in respect of a residential building on the ground of wilful default in payment of rent for the period from November, 1975 to September, 1976. The Rent Controller found that the tenant had committed wilful default in payment of rent and ordered eviction. During the pendency of the appeal, the tenant produced a carbon copy of the judgment in P.S. Elango v. Sivagarni Amtnal and two Ors. C.R.P. No. 1325 of 1977, dated 16th November, 1978, as additional evidence, wherein this Court in a revision petition arising out of an earlier petition for eviction observed that the tenant undertook to pay rent regularly in future and that the tenant should be given a last chance to reform himself and pay the rent regularly without default. Before this order was passed in C.R.P. No. 1325 of 1977, the landlord had already filed another petition for eviction which has given rise to this present civil revision petition for arrears from November, 1975 to September, 1976. When this order in the earlier civil revision petition was produced ' before the Appellate Authority, it held that the High Court had condoned the delay and the default in payment of rent on the part of the tenant and therefore, there was no wilful default in this case. Consequently, the eviction order was set aside and the appeal was allowed. The landladies are aggrieved by this order and have come on revision.

2. The short point for consideration in this petition is whether the order passed in C.R. P. No. 1325 of 1977 has any relevance to the present petition. It is common ground that the previous C.R.P. No. 1325 of 1977 arose out of the eviction petition which was filed on the ground of wilful default ins payment of rent for the period from 1st January, 1973 to 31st May, 1973. The present civil revision petition is with reference to the period of default from November, 1975 to September, 1976 covered by the subsequent petition for eviction. The Appellate Authority has relied on the order passed in the previous C.R.P. No. 1325 of 1977, wherein this Court took an indulgent view and allowed that civil revision petition directing the tenant to pay rent regularly in future. This order is now sought to be used as a defence in the present petition for eviction.

3. Learned Counsel for the landladies strenuously contended that the order in C.R.P. No. 1325 of 1977 was only with reference to the subject-matter which arose for consideration in that petition and it cannot have any application for the subsequent period of default. Of course, the order in the said civil revision petition was passed on 16th November, 1978. But, by then H.R.C. No. 183 of 1977 in respect of which this present civil revision petition has arisen had been filed for subsequent arrears. The pendency of the subsequent petition for eviction, namely, H. R. C. No. 183 of 1977 was not brought to the notice of the learned Judge while disposing of C.R.P. No. 1325 of 1977. If it had been brought to the notice by either party, one would expect this Court to have referred to it specifically. Therefore, the subsequent eviction petition H.R.C. No. 183 of 1977 was not before this Court when it disposed of C.R.P. No. 1325 of 1977. Consequently, it follows that C.R.P. No. 1325 of 1977 must be construed as having been disposed of on the facts before it and it does not cover the other proceeding which was then pending in the lower Court.

4. It was also contended on behalf of the landladies that the High Court has no jurisdictions to give directions in respect of the eviction petition which was not before the High Court on the date of the disposal of C.R.P. No. 1325 of 1977. Learned Counsel also argued that there is no provision in: the Act for condoning the delay in payment of rent by the tenant and that the High Court has no jurisdiction to condone the delay in respect of the period which was not the subject-matter of the previous civil revision petition. There is a lot of force in this argument. In fact, in the order in the previous civil revision petition (C.R.P. No. 1325 of 1977), the High Court held that 'the tenant was not fair towards the landlords in the matter of payment of arrears of rent' and further administered a warning to the tenant that 'any such repetition of such default can be taken as wilful without any further enquiry apart from the wilfulness which may be proved within the meaning of the Explanation to Section 10'. Consequently, the previous default was 'excused' with a direction. It is not necessary for the purpose of this case to go into the question whether the High Court has or has no jurisdiction to excuse the delay in payment of rent. Of course, it is always open to the Court to find out from the facts of the case whether the alleged default was wilful or not. But, the fact remains that the order rendered in the previous civil revision petition was only with reference to the matter which arose in that case and it cannot apply to the other pending proceedings, especially when there is no reference to it in that order. I am of the view that this petition is with reference to the subsequent default which was not the subject-matter in C.R.P. No. 1325 of 1977.

5. Learned Counsel for the landladies submitted that the building is situated in a very busy and important locality, namely, Millers Road, Kilpauk and that the tenant is in occupation on a low rent of Rs. 225, from 1963 onwards without any increase. The conduct of the tenant in refusing to pay even the modest rent for the premises is certainly wilful. Of course, it is stated on behalf the tenant that he has suffered loss in his business and therefore, he is unable to pay the. rent for some years. Inability to pay the rent is a very strong circumstance indicating that the default was wilful and that the tenant is not in a position to discharge his obligation to his landlords. Therefore, such a tenant cannot claim to be protected under Act XVIII of 1960.

6. The result is, this civil revision petition is allowed, the order of the Appellate Authority is set aside and that of the Rent Controller ordering eviction is restored. No costs. Time for vacating the premises, three months from today.


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