Borosil Glass Works Limited vs S.R. Mazda

M. Karpagavinayagam, J.—Borosil Glass Works Limited at No. 161, Second Floor, Anna Salai, Chennai-2. the petitioner herein is the

tenant. Challenging the concurrent orders of eviction, the present revision has been filed before this Court.

The respondent/landlord filed an application in R.C.O.P.No. 2889 of 1989 for eviction u/s 10(2)(1) for the Tamilnadu Buildings (Lease and

Rent Control) Act, 1960, (hereinafter referred to as ""the Act"") on the ground of wilful default.

During the pendency of the said application, the petitioner/tenant filed an application in R.C.O.P.No. 3311 of 1989 u/s 9(3) of the Act for

deposit of rents into court. After a common enquiry in both these applications, a common order was passed by the Rent Controller upholding the

claim of the landlord and dismissing the application filed by the tenant for deposit of rents into court.

The tenant-the petitioner herein chose to file an appeal before the appellate authority only as against the order of eviction passed in

R.C.O.P.No. 2889 of 1989, but did not think it fit to file an appeal as against the order in R.C.O.P.No. 3311 of 1989 dismissing the request of

the tenant for deposit of rents into court.

According to the landlord-the respondent herein, the petitioner is the tenant on a monthly rent of Rs. 200 for non-residential purpose in respect

of the portion in the first floor in the premises bearing Door No. 15, Second Line Beach Road and that they are in arrears of rent for the period

from September, 1988 to August, 1989 and that the said arrears were not paid even after the demands and since the tenant had wilfully committed

default in payment of rents, they should be evicted from the petition premises.

According to the petitioner herein-the tenant, they have been paying rents to the landlord R.F. Mazda, the respondent herein upto August 1988

and when they received a letter dated 17.8.1998 from Raian F. Mazda and Feriste F. Chindhy claiming rights over the petition premises as per the

Will of Smt. Gulabi Mazda stating that they are entitled to half of the rent, they stopped paying the rent and they wrote letters to both the landlords

to produce the documents for the title and that since the tenant received no reply from both of them, they filed R.C.O.P.No. 3311 of 1989 for

deposit of rents into court and they have been depositing rents into court regularly and as such, they have not committed wilful default.

After considering the evidence, oral and documentary adduced by both the respondent-landlord and the tenant-petitioner, the Rent Controller

concluded that the application u/s 9(3) of the Act is not maintainable, since there is no dispute with reference to the title. The Rent Controller also

further held that there is no proper explanation as to why the amount has not been paid from September, 1988 to August, 1989 to the respondent-

landlord and as such, the tenant is liable to be evicted on the ground of wilful default. This is confirmed by the appellate authority as well.

Mr. Perumbulavil Radhakrishnan, learned Counsel appearing for the petitioner/tenant in this revision challenging the impugned orders contends,

that the authorities below cannot draw an inference against the tenant merely because the petitioner-the tenant did not file an application to deposit

rents into court immediately after receipt of notice from the other parties, inasmuch as the evidence has been let in by the tenant that they waited for

the reply from both the landlords so that they could take a decision to whom the amount should be paid. At any rate, since the entire amount of

arrears was deposited into court after filing the application u/s 9(3) of the Act, it cannot be construed as wilful default since the conduct of the

parties would show that they acted in good faith by depositing the entire amount in court. It was also pointed out, that the petitioner company as

the tenant from 1952 have been regularly paying the rental amount and from 1979 to the present landlord and as such the single default, viz., the

failure to make the payment of the rents from September, 1988 to August, 1989 cannot be termed as wilful default.

Mr. P. Gopalan, the learned Counsel appearing for the respondent in justification of the impugned order would contend that both the forums

below have considered the aspect of the wilful attitude of the petitioner-tenant who did not take any steps to send the amount either to the

respondent-landlord or to the other landlords who claimed share in the rents as per the Will. It is also pointed out that the application u/s 9(3) of

the Act was correctly dismissed by the Rent Controller holding that the said application could not be maintained in law and the tenant also did not

choose to file the appeal as against the order dismissing the application u/s 9(3) of the Act and as such, the petitioner-tenant cannot now contend

that they have taken steps to deposit the amount into the court by filing application which was also held to be not maintainable.

I have carefully considered the respective submissions.

At the outset, I shall mention that the petitioner did not give any acceptable explanation as to why the amount of arrears from September, 1988

to August, 1989 was not paid to the landlord. It is submitted that merely because on receipt of a letter dated 17.8.1988 sent by the other two

persons who claimed right over the half of the rent, the tenant sent a reply notice through advocate to both the landlords demanding for the

production of the document pertaining to the title, it cannot be concluded that they kept quiet without taking any steps for arranging for the payment

of the rents either to the present landlord or to the other landlords from whom they received the notice.

It is further pointed out that the fact that application u/s 9(3) though was not maintainable, was filed in November 1989 with readiness to

deposit the entire arrears of rent into the court would itself show that there is no deliberate intention on the part of the petitioner to avoid the

payment of rental arrears to the landlords. But, this submission of the tenant, the petitioner herein, in my view, does not appear to be sound.

It shall be noticed that as soon as the tenant received the letter from the other landlords dated 17.8.1988, the tenant was advised to send a

lawyer''s notice to both the landlords asking for the documents, Despite the receipts of the notice, neither of the parties have sent any reply. Such

being the situation, the tenant must have taken proper steps either to send the amount by apportioning it to all the landlords or to take necessary

steps to file such an application before the court for the deposit of the said amount without allowing for the lapse of one year. Admittedly, the

R.C.O.P. has been filed by the landlord in October, 1989.

According to P.W.1 the landlord, there was consistent demand by the landlord for the arrears from the tenant. There is no reason to disbelieve

his evidence especially when the landlord filed an application u/s 10(2) of the Act for wilful default in October, 1989. The petitioner-tenant chose

to file an application u/s 9(3) of the Act only in November 1989.

Admittedly, the payment of rent was stopped after receipt of letter on 17.8.1988, but it is seen that they have paid the rent towards the month

of August to the landlord. If the petitioner-tenant had stopped the payment of rents to the landlord on receipt of letter dated 17.8.1988 from the

other landlords, they would not have paid the rent for the month of August to the present landlord who is the respondent herein. Furthermore, this

aspect of wilful attitude of the tenant, in my view, has been correctly dealt with by both the authorities below in detail on the basis of the factual

materials.

Therefore, I do not find any valid reason to interfere with the impugned orders especially when I consider that the reasonings given by the Rent

Controller as well as the appellate authority to conclude that the tenant is liable to be evicted on the ground of wilful default, are correct and sound.

In the result, the revision is dismissed. Consequently, C.M.P.No. 10142 of 1998 is also dismissed.