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K. Raju Vs. Gilford Hilkish - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)2MLJ121
AppellantK. Raju
RespondentGilford Hilkish
Cases ReferredVasavambal v. Chenntappa Gounder
Excerpt:
- .....of the tenant under sections 10(2) and 14(i) of the tamil nadu act xviii of 1960 on the ground of wilful default in the payment of rent from december, 1979 till date of petition for 14 months and for requirement of the building for demolition and reconstruction on the ground that the building is an old one. the tenant resisted the petition on the grounds that the landlord had sent a notice on 10th october, 1973, asking the tenant to vacate the demised building for the personal occupation of the landlord, that the tenant sent a reply denying the alleged requirement of the landlord at that time, that on 9th january, 1975, the landlord sent another notice asking the tenant to vacate the building on the ground that the building required renovation, that the tenant sent a reply denying the.....
Judgment:

M. Fakkir Mohammed, J.

1. The tenant is the revision petitioner. The respondent landlord filed H.R.C.O.P. No. 3 of 1981 for eviction of the tenant under Sections 10(2) and 14(i) of the Tamil Nadu Act XVIII of 1960 on the ground of wilful default in the payment of rent from December, 1979 till date of petition for 14 months and for requirement of the building for demolition and reconstruction on the ground that the building is an old one. The tenant resisted the petition on the grounds that the landlord had sent a notice on 10th October, 1973, asking the tenant to vacate the demised building for the personal occupation of the landlord, that the tenant sent a reply denying the alleged requirement of the landlord at that time, that on 9th January, 1975, the landlord sent another notice asking the tenant to vacate the building on the ground that the building required renovation, that the tenant sent a reply denying the bona fides of the alleged requirement for renovation, that in 1978 the landlord filed H.R.C.O.P. No. 7 of 1978 for eviction on the ground of wilful default in the payment of rent, that the said eviction petition as well as the civil miscellaneous appeal filed by the landlord were dismissed, that the tenant was paying the rent regularly, that after the dismissal of the civil miscellaneous appeal, the tenant sent three months' rent due for December, 1979 to February, 1980 by money order as the landlord refused to receive the rent after the dismissal of C.M.A. No. 6 of 1979, that the landlord refused to receive the amounts sent by money order and that thereafter the landlord has chosen to file H.R.C.O.P. No. 7 of 1978 for eviction on the ground of wilful default and that the tenant had deposited the entire arrears of rent immediately after the petition was filed and the landlord also has received the same from the Court.

2. The learned Rent Controller has, after examining the landlord and the tenant as well as the Commissioner, gave the findings on the question of wilful default that the tenant has not committed any wilful default in the payment of arrears of rent and on the question of requirement for demolition and reconstruction that the requirement is not a bona fide requirement, since the landlord is actuated by mala fide intention of throwing out the tenant. On such findings, the eviction petition has been dismissed without costs.

3. On appeal to the Appellate Authority (Sub Court, Padmanabhapuram), the learned appellate authority has differed from the Rent Controller and gave the finding that the tenant has committed wilful default in the payment of arrears of rent and that the requirement of the building is a bona fide requirement. Hence this revision Petition.

4. On the question of wilful default, the learned Rent Controller has written a well-considered order taking into consideration the prior proceedings taken by the landlord for evicting the tenant and the subsequent conduct of the landlord in refusing to receive the money order sent by the tenant for three months after the dismissal of the landlord's C.M.A. No. 6 of 1979 on 26th June, 1979. Exs. B. 1 and B-2 are the previous notices dated 10th October, 1973, and 9th January, 1975, sent by the landlord to the tenant. In Ex. B-1 the reason given for asking the tenant to vacate the building is the requirement for personal occupation. The reason given in the second notice, namely, Ex. B-2 dated 9th January ,1975, is that the building was required for renovation. On both the grounds, an eviction petition was filed by the landlord. On the other hand, Ex. B-3 the certified copy of the order dated 27th January, 1979, in H.R.C.O.P. No. 7 of 1978 discloses that the eviction petition was filed on the ground of wilful default in the payment of rent. The said petition was dismissed on the ground that there was no wilful default in the payment rent and the appeal filed by the landlord in C.M.A. No. 6 of 1979 was also dismissed.

5. It is seen from Ex. A-3 the certified copy of the memo in H.R.C.O.P. No. 7 of 1978 that the petitioner herein bad deposited the rent for the months of January, 1978 to June 1978 into Court. Similarly, it is evident from Ex. A-2 memo dated 26th June, 1979, that the tenant deposited the rents from January, 1979 to May, 1979. It is after the said deposit, the civil miscellaneous appeal was dismissed and the landlord has refused to receive the rent from the tenant and the tenant sent the rents by money order for December, 1979 to February, 1980 under Ex. B-4. Admittedly, the landlord has refused Ex. B-4 dated 12th March, 1980. Ex. B-5 to B-7 are the money order receipts dated 10th March, 1980, 5th February, 1979 and 7th March, 1979. From the above documents and circumstances, it is evident that the landlord was bent upon throwing out the tenant from the demised building and with that end in view, he had been trying to invent some ground or other under which alone the landlord can evict a tenant under Act XVIII of 1960.

6. When the learned Counsel for the respondent in this revision was enquired as to why the landlord refused to receive the rents from the tenant after the dismissal of C.M.A. No. 6 of 1979, which was filed against the dismissal of the previous eviction petition, the learned Counsel for the landlord has given the reply that even though the landlord had refused to receive the rent, it is the duty of the tenant to deposit the arrears of rent either into Court or in a Bank, as per Sections 8(2) and 8(5) of Act XVIII of 1960. The learned Counsel did not dispute the fact that the landlord has no excuse for having refused to receive the rents remitted by money order by the tenant. Therefore, there is no difficulty in coming to the conclusion that the landlord had refused to receive with a mala fide intention inspite of the fact that the previous eviction petition filed on the ground of wilful default was dismissed without believing his contention that the tenant had committed unful default previously also. It can be presumed, therefore, that the landlord has wilfully refused to accept the rent subsequently also with a view to create a ground for filing another eviction petition as though the tenant committed wilful default in the payment of the rents.

7. Section 8(2) of Act XVIII of 1960 provides that where a landlord refuses to accept, on evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. The section is not mandatory and it is only discretionary. Considering the mala fide intention and the conduct of the landlord, the tenant cannot be expected to waste his whole energy in tackling the mala fide of the landlord without concentrating upon his business.

Section 8(5) of the Act reads as follows:

If the landlord refused to receive the rent remitted by money order under Sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building

Here also the word used is 'may' and not 'shall' as in Section 8(1), Explanation to Section 8(2) and Section 8(3). Under Section 8(1) of the Act, every landlord who receives rent shall issue a receipt. Under the Explanation to Section 8(2), it shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso, a bank different from the one already specified by him. Similarly, Section 8(3) provides that if the landlord specified a bank to the tenant, the tenant shall deposit the rent in the bank and shall continue to deposit. Thus, the framers of the Act have been conscious enough in drafting the word 'may' in Section 8(2) and 8(5) of the Act, making it only obligatory for the tenant to deposit the rent either in a bank or in the Rent Controller's Court so long as he has not committed wilful default. In this case, the landlord has not issued any notice to the tenant either to deposit the rent in any bank or to deposit in the Rent Controller's Court. Therefore, the refusal to receive the money order sent by the tenant inspite of the dismissal of the prior eviction petition filed by the landlord on the same ground of wilful default amounts to harassment of the tenant and in such cases failure to deposit the subsequent rent by the tenant cannot be considered as a wilful default. It shall be borne in mind that after having refused to receive the money order, the landlord keeps silent for about 11 months and then chooses to file an eviction petition on the ground of wilful default. There is absolutely no valid explanation as to why the landlord kept silent after having refused to receive the money order for 11 months without sending any notice to the tenant as contemplated by Sections 8(2) and 8(3) of the Act.

8. The learned Counsel for the landlord referred to Section 8(4) of the Act, which provides that if the landlord does not specify a bank, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission. The tenant has complied with this provision by sending the money order and the landlord has refused to receive the money order. Thus the tenant has complied with the mandatory provision of Section 8(4) of the Act and it is the landlord who has committed wilful refusal to receive the rent.

9. It is not in dispute that immediately after the landlord filed the eviction petition, the tenant deposited the entire rents which had not been received by the landlord and in fact refused to be received by the landlord. Thus the tenant has proved his bona fides in the accumulation of the rent for 11 months at the time of the filing of the eviction petition as well as the mala fide intention of the landlord. It was held in Basappa v. Jumnadoss : (1979)1MLJ317 that though a practice of the tenant paying rent once in two months and the landlord receiving the same without demur cannot be pleaded so as to escape a petition for eviction on the ground of wilful default, yet that particular circumstances in a particular case can certainly be a ground for the tenant to set up a case that there was no wilful or contumacious conduct on his part to avoid the payment of rent. In this case, there was absolutely no contumacious conduct or supine indifference on the part of the tenant in the payment of the rent. It is the landlord who had been refusing to receive the rent with the mala fide intention of finding out a ground for unreasonably evicting the tenant. Therefore, the nonpayment of rent by the tenant in this case cannot be deemed as wilful default in the payment, of rent. In Ramaswamy Pathar v. Thiagaraja Chettiar (1983) 1 M.L.J. 114. it was held that where the landlord allowed the rents to get accumulated and received in lump sum whenever needed and filled eviction petition after sending a sudden lawyer notice, having kept quiet for 16 months even though the landlord was occupying a shop of his own very near the demised building, there was no wilful default on the part of the tenant, since the tenant paid the entire rent after receipt of notice. It is only to curb unreasonable eviction of tenants by greedy landlords that the Rent Control Act has been enacted by the Legislature. Therefore, if the landlords are allowed to evict tenants by refusing to receive the reat even after they were sent by money order for setting up a plea of wilful default in the payment of rent, such intendment of the enactment will automatically get defeated. In Komalm Ammal v. Ashoka Cycle and Motor Company : (1980)1MLJ194 it was held that where the landlady bad agreed to receive the rents in a lump sum and when the entire arrears were paid immediately after receipt of notice of eviction, when the landlady was living only in the upstairs of the demised premises, the delay in the payment of rent cannot be construed as wilful default. On the above sound principles laid down in the several judicial decisions, it has to be held in this case that there is absolutely no sort of wilful default on the part of the tenant.

10. The learned Rent Controller has discussed the circumstances under which the tenant was made to keep the rents with him after the refusal of the landlord to receive the money order. On the other hand, the appellate authority has mechanically held without considering the circumstances under which the landlord had refused to receive the rent and the immediate payment of the entire arrears of rent as soon as the eviction notice was served on the tenant. It has been held by the Supreme Court in Hasmat Rai v. Raghunath Prasad : [1981]3SCR605 that the finding of fact, ignoring incontrovertible admitted position which would non-suit the plaintiff, if upheld would be trovesty of justice. The above decesion applies on all fours to the facts of this case so far as the wrong finding given by the appellate authority. The appellate authority has failed to draw the correct conclusion after having observed in paragraph 3 that the landlord had want only refused to receive the arrears of rent and filed the eviction petition on 2nd March, 1981, and the tenant immediately deposited the entire arrears of rent which were received by the landlord from the Court on 5th March, 1981.

11. The appellate authority has relied upon the decision in Vasavambal v. Chenntappa Gounder : (1980)1MLJ207 , where in the tenant did not send the rents for over two years without any explanation for such non-payment and the default was held to be wilful. The above decision cannot at all be applied to the facts of this case where the money order was refused by the landlord for ulterior motives and where it was held that the landlord had previously also filed an eviction petition on the false ground of wilful default which was not accepted by all the Courts. The appellate authority has misquoted the decision which is not at all applicable to the facts of this case.

12. So far as the second ground for demolition and reconstruction is concerned, the fact is that the landlord did not want to demolish the entire building and that he had proposed to erect a small additional construction in the building by demolishing one wall in the place of the staircase. The Rent Controller has found that the above-said proposal for demolition of one wall and reconstruction of a shop is nothing but an ingenious attempt of the landlord to file the eviction petition within the four corners of Act XVIII of 1960 and that such demolition of one wall for the purpose of constructing a staircase cannot attract Section 14(1) of Act XVIII of 1960. Section 14(1)(b) contemplates bona fide requirement of the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished. What the landlord has averred at the end of paragraph 2 of the petition is that the beams will not materially change the structure of the building or give it an entirely new face, though the cubical content of the space enclosed will be increased and that such a case will not amount to demolition and reconstruction within the meaning of Section 14(1)(6) of Tamil Nadu Act XVIII of 1960.

13. The very conduct of the landlord in having refused to receive the money orders sent by the tenant immediately after the dismissal of the previous eviction petition filed on the ground of wilful default and then filing the second eviction petition on the ground of wilful default with the additional ground under Section 14(1)(b) of the Act is positive proof of the mala fide intention of the landlord in the requirement of demolition of one wall and extension of the existing building by putting up additional construction for a shop. Thus, there is absolutely no bona fides what so ever in the requirement of the building under Section 14(1)(b) of the Act. The Appellate Authority has not at all applied its mind to the above legal principles and the finding of the appellate authority is not at all sustainable in law and on facts.

14. The Rent Controller has observed that there is no vacant space for putting up additional shop and will not materially change the structure of the building or give it an entirely new face though the cubical content of the space enclosed will be increased and that such a case will not amount to demolition and reconstruction within the meaning of Section 14(1)(b) of Tamil Nadu Act XVIII of 1960. The very conduct of the landlord in having refused to receive the money orders sent by the tenant immediately after the dismissal of the previous eviction petition filed on the ground of wilful default with the additional ground under Section 14(1)(b) of the Act is positive proof of the mala fide intention of the landlord in the requirement of demolition of one wall and extension of the existing building by putting up additional construction for a shop. Thus, there is absolutely no bona fides what soever in the requirement of the building under Section 14(1)(b) of the Act. The Appellate Authority has not at all applied its mind to the above legal principles and the finding of the appellate authority is not at all sustainable in law and on facts.

15. The Rent Controller has observed that there is no vacant space for putting up an additional shop except the staircase portion of the building and that, therefore, the requirement is not a bona fide one. The appellate authority has simply rejected the above conclusion of the Rent Controller by stating that the tenant has no right to go to the upstairs portion, that there is no evidence that there is any necessity to go to the upstairs either by the tenant or by anybody else and that, therefore it is not correct to observe that the landlord's statement that he would put up a new shop in the stair case portion is not true and correct. In fact, the landlord has not even mentioned anything about the demolition of the staircase for the purpose of erecting an addititional shop. Thus, the appellate authority has taken extraneous matters into consideration for giving an incorrect finding on the second ground of requirement, which is not sustainable in law and on facts. Therefore, the judgment and decree of the appellate authority are liable to be set aside and the eviction order passed by him requires to be restored.

16 In the result, this civil revision petition is allowed with costs. The order of the appellate authority is set aside and the order of the Rent Controller is restored.


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