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Kesavan Vs. S. Vincent Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1973)1MLJ406
AppellantKesavan
RespondentS. Vincent Pillai
Cases ReferredNagarathinam Pillai v. Mahadevier
Excerpt:
- .....no. 144 of 1967 on 3rd april, 1967, contending that the tenant-respondent herein has committed wilful default in paying rents for the period from 11th november, 1966 to 28th february, 1967, at the rate of rs. 35 per month, the premises being a non-residential one.2. the contention of the respondent seems to have been that the landlord accepted rent at irregular intervals in the sense that the landlord agreed to receive the rent in lump sum instead of every month. the said contention has been negatived by all the courts below including the revisional court wherein the agreement sought to be put by the tenant has been disbelieved. even though the rent, controller's court and also the appellate authority have clearly given a finding as regards wilful default, the revision court, i.e.,.....
Judgment:

P.R. Gokulakrishnan, J.

1. The landlord is the petitioner in this case. There seems to be previous proceedings against the tenant when he committed default in payment of rents, but those proceedings seem to have been compromised. Finally there was proceeding in H.R.C.O.P. No. 72 of 1966 in respect of the default committed by the respondent herein. Even that petition was compromised according to Exhibit A-7 in and by which the tenant agreed to pay rent regularly on or before the 5th of every succeeding month. The rent has to be reckoned according to the English calendar month. In spite of the said agreement the tenant has not paid rents from 11th November, 1966 to 27th February, 1967. Necessarily the landlord has filed H.R.C.O.P. No. 144 of 1967 on 3rd April, 1967, contending that the tenant-respondent herein has committed wilful default in paying rents for the period from 11th November, 1966 to 28th February, 1967, at the rate of Rs. 35 per month, the premises being a non-residential one.

2. The contention of the respondent seems to have been that the landlord accepted rent at irregular intervals in the sense that the landlord agreed to receive the rent in lump sum instead of every month. The said contention has been negatived by all the Courts below including the revisional Court wherein the agreement sought to be put by the tenant has been disbelieved. Even though the Rent, Controller's Court and also the appellate authority have clearly given a finding as regards wilful default, the revision Court, i.e., the District Judge, Tiruchirapalli has reversed the said finding. No doubt the revision to the District Judge is under Section 25 of the Madras Buildings (Lease and Rent Control) Act which is of wider amplitude that the revision under Section 115, Civil Procedure Code. But to interfere under Section 25 of the Rent Control Act, it is not the duty of the Court to go into the merits of the facts but it must generally see whether there is any error of law or miscarriage of justice. On the other hand, the District Judge seems to have ignored all these aspects and simply reversed the finding of both the Courts below on the ground that the landlady did not insist on the payment of the rent on or before the 5th of every succeeding month when she received the money-orders for the months of June to October, without any demur.

3. In Lingambhotla Subbayya v. The Subordinate Judge, Vijayawada wad Anr. (1955) 1 M.L.J. 514 : A.I.R. 1951 Mad. 864 a Bench of this Court presided over by Rajamannar, C.J. and Somasundaram, J. has categorically held that though a landlord may not have been insisting on regular payments and was accepting without protest arrears of rent which had accumulated, if he chooses to apply Under Section 7 of the Madras Buildings (Lease and Rent Control) Act, he will be entitled to an order of eviction, if he proves there has been a default as contemplated by the section. Mr. Rajaram wants to cite G. Rangaraju v. Parthasarathi : (1960)IILLJ351Mad wherein Venkatadri, J., on the facts of that case held that there was no callousness or supine indifference on the part of the tenant in paying rent and as such default in paying the rent for a few days cannot be considered as wilful default. I do not think this decision will supersede the Bench decision of this Court in Lingambhotla Subbayya v. The Subordinate Judge, Vijayatuada and Anr. (1955) 1 M.L.J. 514 : A.I.R. 1951 Mad. 864 and further the facts of that case are entirely different from the facts of the case on hand.

4. No doubt in Pandurang v. Marti : [1966]1SCR102 the Supreme Court has held:

While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute. itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of is jurisdiction with irregularity that the revisional jurisdiction of the High Court can be properly invoked.

As far as the present case is concerned, even though the two Courts below have held that there was wilful default, the Revision Court reversed the finding of fact without any valid ground and on an 'erroneous view as if the irregular payments have been accepted by the landlady, and dismissed the eviction petition. This is a clear case wherein the Court below has acted illegally and it is the duty of the High Court under Section 115, Civil Procedure Code to correct such illegality.

5. In the Vellore Shrof Kumaraswami Chetti Choultry by the Executive Trustee v. Veeraswami 1972 T.L.N J 43. Sadasivam, J. has held that under Section 25 of the Rent Control Act, the revision Court can interfere only if the order impugned was illegal or improper and not otherwise. I do not find that the orders passed by the Rent Controller and the Subordinate Judge are illegal or otherwise perverse.

6. Taking into consideration the Bench decision of our High Court in Lingambhotla Subbayya v. The Subordinate Judge, Vijayawada and Anr. : AIR1951Mad864a it is clear that the tenant has committed wilful default in paying rents from 11th November, 1966 to 28th February, 1967. However much he has paid the amounts subsequently, the wilful default committed by him cannot be cured and as clearly observed in Nagarathinam Pillai v. Mahadevier : (1969)2MLJ492 this may be a pointer in granting some time to vacate but that is not a ground for holding that there was no wilful default. In the present case the tenant has committed default and there was callousness and indifference on the part of the tenant in spite of Exhibit A-7 in paying the monthly rents regularly. I am of the view that the order passed by the District Judge in C.R.P. No. 8 of 1969 cannot be sustained and in these circumstances this Civil Revision Petition is allowed and the orders of the Rent Controller and the Subordinate Judge in the Civil Miscellaneous Appeal are restored.

7. The result is the respondent herein will be evicted from the premises he is in occupation at present. Time to vacate three months. There will be no orders as to costs.


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