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Judgment
Prabha Sridevan, J.—C.R.P. No. 1525 of 1999 arises out of R.C.O.P. No. 2495 of 1992, which was filed for eviction on the ground of
wilful default and acts of waste. C.R.P. No. 1524 of 1999 arises out of R.C.O.P. No. 2732 of 1991 in which eviction was sought for on the
ground of denial of title. The Rent Controller ordered eviction in both the petitions. The Appellate Authority confirmed it and therefore, the two
revisions are filed by the tenant. Mr. V. Raghavachari, learned counsel for the petitioner, would attack the order of eviction on the following
grounds:
The petition for eviction is not maintainable since in earlier proceedings, between the parties for fixation of fair rent the tenant approached the
Supreme Court and until orders were passed in those civil appeals, the fair rent cannot be said to have attained finality and until finality is reached,
the tenant cannot be said to have committed wilful default, for non-payment of the arrears of rent pursuant to the order of fixing fair rent. As
regards act of waste, he would submit that the alleged act of waste consists of closing of certain windows. According to the learned counsel, it
cannot be justifiably said that closing of certain windows would impair the value or utility of the building. In the absence of any diminishment to
either the value or utility, the act of waste cannot be said to have been made out. As regards denial of title, learned counsel submitted that originally
what was let out was only a small portion and the petitioners had invested huge amounts on their own money to put up larger building. Therefore,
the petitioner also filed a civil suit for declaration of their right as a tenant in respect of the land and as owner in respect of the superstructure. Only
after hot contest, the suit was decreed and so, there was some justification in their claim and it was also therefore, bona fide. He relied on the
following judgments.
(1) V. Janaki Vs. Azimunnisa Begum, where this Court held that until the fair rent became final, there can be no wilful default for non-payment of
the difference between contractual rent and fair rent.
(2) J. Visalakshi Ammal v. T.B. Sathyanarayana (1996 2 L.W. 849), where the Division Bench of this Court held that difference between the fair
rent fixed and the agreed rent is the arrears of rent and it becomes payable when the order fixing the fair rent becomes final. The learned counsel
would stress on the word ''final'' and submit that therefore, there was no liability to pay the fair rent until it become final by the judgment of the
Supreme Court.
(3) Nelson and other v. P. Ranganathan Mudaliar (1995 I CTC 446), where this Court held that non-payment of difference between fair rent and
agreed rent is not wilful default.
The following judgments were relied on to support the case of the petitioner that the respondent cannot sustain his case of act of waste.
(1) In Mrs. Chandra & others v. The Commissioner for Workmen''s Compensation (2001 I TLNJ 274), this Court held that, the necessary factors
to be established to amount to act of waste would be material impairment of value or utility of the building.
(2) In C. Kailaschand Jain & two others v. Mohamed Kasim (1995 I CTC 47), this Court held that, the act of waste contemplated under the Act
would be acts which lower the economic value of the building and not possible mental inconvenience suffered subjectively by the landlord.
Mr. Ashok, learned counsel for the respondent on the other hand would submit that the Rent Control petition is perfectly maintainable and it
was filed only after the Supreme Court had confirmed the fair lent fixed by the Rent Controller. Thereafter, notice was issued and in spite of that,
the tenant did not pay the rental arrears. Therefore, it was not mere default but wilful default. He also submitted that in 1978 itself, the application
for fixation of fair rent was filed and in that, the tenancy was admitted. Therefore, the subsequent plea that the petitioner was the owner of the
superstructure and not the respondent is not a bona fide denial of title. As regards acts of waste, he submitted that the petition premises was for
housing dogs and by shutting the windows the dogs were choked and therefore, the utility of the building was impaired. In any event, he submitted
that this finding that there was act of waste was not challenged by the petitioner by raising appropriate grounds before the Appellate Authority nor
was any argument advanced. In these circumstances, it is not open to the petitioner to now urge that the closing of the windows would amount to
act of waste.
The history of this litigation spans several decades. Land and building were let out by the respondent originally to the father of the second
petitioner herein. Subsequently, the petitioners became the tenants under the respondent. In 1978, the respondent filed H.R.C. No. 1561 of 1978
for fixation of fair rent. The Rent Controller fixed the fair rent at Rs. 6994/- per month, by order dated 07-11-1979 effective from 26-04-1978.
The petitioner challenged this in H.R.A. No. 232 of 1980. This appeal was dismissed on 20-08-1983. The petitioner filed an application for stay
before the Appellate Authority. The Appellate Authority directed the petitioners to deposit the arrears of rent calculated at the rate fixed by the
Rent Controller. The petitioner did not comply with the condition and the stay petition was dismissed on 20-06-1980. Thereafter, the respondent
filed H.R.C. No. 4593 of 1980 for eviction on the ground of wilful default. It is in this petition that the petitioner for the first time claimed that it was
only a vacant land and therefore, the Rent Controller had no jurisdiction to decide the eviction petition. The above H.R.C. was dismissed on 19-
03-1982. However, the Rent Controller gave a finding that what was let out was not only land but also the superstructure and therefore, the Rent
Controller had jurisdiction.
Against this finding, the petitioner filed R.C.A. No. 539 of 1982. Both the appeals in H.R.A. No. 232 of 1980 and R.C.A. No. 539 of 1982
were heard together and dismissed on 20-08-1983. Against this, the petitioner filed C.R.P. No. 5013 and 5014 of 1983, on 23-11-1983. The
petitioner also filed O.S. No. 1855 of 1980 for a declaration that the tenancy was only in respect of vacant land and that the petitioner was entitled
to the protection under the City Tenants'' Protection Act. This suit was dismissed with costs. Against that, A.S. No. 234 of 1983 was filed by the
petitioner. This was dismissed on 31-01-1986. Against that, S.A. No. 667 of 1988 was filed. The above Second Appeal as well as the revisions
C.R.P. Nos. 5013 and 5014 of 1983 were all heard together by this Court and after consideration, that were all dismissed on 07-04-1989. Thus,
the fair rent fixed was confirmed. The finding that the tenancy was in respect of land and building was confirmed and the claim that the petitioner
was entitled to the benefits of the City Tenants Protection Act was rejected. The judgment in S.A. No. 667 of 1988 was allowed to become final.
Therefore, R.C.O.P. No. 2732 of 1991 was filed for eviction on the ground of denial of title reserving the respondent''s right to file a petition on
the ground of wilful default. This was on 28-10-1991.
In the meantime, the petitioner filed two Special Leave petitions against the dismissal of the two Civil Revision Petitions. Leave was granted and
the Supreme Court dealt with the Civil Appeal Nos. 3640 and 3641 of 1989. Both were dismissed on 31-07-1991. Pending the Civil Appeals,
the direction was given by the Supreme Court to deposit a sum of Rs. 1,28,389/-, being the portion of the arrears of rent and to deposit half of the
fair rent fixed every month into Court. Though the initial deposit is made, the subsequent deposits were not regularly made. Thereafter, a notice
was sent to the petitioners on 22-06-1992 giving the details of the remittances of the rent made thus far and calling upon the petitioners to pay the
arrears of rent from 26-04-1978. This is Ex-P13. This was replied on 12-07-1992, Ex-P14, to which a lengthy rejoinder was given on 20-07-
1992, Ex-P15. Therefore, the respondent filed R.C.O.P. No. 2495 of 1992 u/s 10(2)(1) and 10(2)(3) of the Tamilnadu Buildings Lease and Rent
Control Act. It is the case of the petitioner that the prayer for eviction on the ground of wilful default was premature and not maintainable since the
fair rent had not attained the finality. This is wrong as can be clearly seen from the above narration of facts, since the decision relating to fair rent
reached finality on 31.7.91 and the eviction petition was filed only in 1992.
Further in the decision reported in 1996 2 L.W. 849 (cited supra), this is what the Division Bench of this Court has said:
The interpretation placed on Section 10(2)(i) of the Act in the aforesaid cases does not take into consideration the objects of the Act. The Act
while imposing certain restrictions on the right of a landlord to seek eviction of a tenant also ensures that the rent is paid by the tenant regularly by
providing a ground for eviction in the event the tenant commits wilful default in payment of the rent. The Act also further ensures that such tenant
should pay the arrears upto date before he contests the proceedings for eviction (see Section 11of the Act). If as held in the aforesaid cases that
nonpayment of difference between the fair rent fixed and the agreed rent does not amount to default much less wilful default and as such does not
furnish a ground for eviction under S. 10(2)(i) is accepted as correct, it will result in defeating one of the important objects of the Act and it will
only encourage contumacious conduct on the part of the tenant who with impunity will not pay such arrears. Consequently, it will result in placing
unreasonable restriction on the right of the landlord. It is not possible to appreciate when the fair rent fixed shall be the rent of the building, why the
difference of the amount between the fair rent fixed and the agreed rent should not be considered as rental arrears, if it is not paid within 15 days
from the last day of the tenancy month as provided in Section 10(2)(i) of the Act to which we have already adverted to.
1995 I CTC 446 (cited supra) relied on by the learned counsel for the petitioner was overruled by the Division Bench in 1996 II L.W. 849
(cited supra).
We are firmly of the view that the difference of the amount between the fair rent fixed and the agreed rent is the arrears of rent for the building, and
it becomes payable when the order fixing the fair rent becomes final, and the same shall have to be paid within 15 days from the last day of the
tenancy month, failing which, it would be open to the landlord to issue notice calling upon the tenant to pay the arrears of rent. On the event of the
tenant failing to pay the arrears of rent pursuant to the notice, it would be open to the landlord to institute a proceeding for eviction on the ground
falling under Section10(2)(i)of the Act.
When the proceedings initiated u/s 4of the Rent Control Act had gone up to the Supreme Court and had obtained finality on 31-07-1991, and
thereafter inspite of notice, Ex-p13, the petitioners I committed default in payment of rent, there can be no doubt that it is a wilful non-payment.
With regard to denial of title, the pleadings in R.C.O.P. No. 2732 of 1991 are relevant. In para No. 5 there is no reference to the petition for
fixation of fair rent, H.R.C. No. 1561 of 1978. The respondents also has referred to the counter filed by the petitioner herein, wherein it was stated
that what was let out was 14 grounds and 121 sq. feet together with superstructure measuring about 640 sq.feet. Therefore, in the earlier
proceedings, the petitioner had clearly admitted that what was let out was land together with superstructure.
In the decisions relied on by the learned counsel for the respondent, Lakshmi Printing Works v. Kunhunni Vellodi and another (1981 II RCJ
75). Adhu Vs. V.M. Palaniswamy Gounder, . M/s. Larsen & Toubro Ltd., v. The Trustees of Dharmamurthy (1988 II L.W. 380 (S.C.)) and
Suryakumar Govindjee Vs. Krishnammal and Others, the Courts have held that the mere fact that the building is small or that the land is vast
cannot itself be conclusive proof that what was demised was land only.
In fact in Larsen and Toubro Ltd., Club House Road, Madras Vs. Trustees of Dharmamurthy Rao Bahadur Calavala Cunnan, Chetty''s
Charities by its Trustees, the Supreme Court held that it is highly doubtful whether the Act was intended to enable affluent persons or prosperous
companies, like the present appellant, to take advantage of its provisions to compel a lessor to sell to them properly of which"" they have obtained
initial possession as lessees. ""The Act that is referred to in this decision is Tamilnadu City Tenants Protection Act.
In Adhu Vs. V.M. Palaniswamy Gounder, ), when the property demised was an extensive land in which a small masonry structure existed, the
theory of dominant intention was sought to be imported. This court held that the Section does not warrant such a construction. These decisions
come to the aid of the respondent.
In the earlier proceedings, the petitioner had admitted that what was let out was 14 grounds together with superstructure. In these
circumstances, the subsequent plea that the tenancy was only in respect of the land and not the superstructure cannot be considered to be bona
fide denial of the title. The Second Appeal which arose out of the suit claiming the benefits of the City Tenants Protection Act was dismissed on
07-04-1989. The Civil appeals which arose against the challenge made by the petitioner to the finding that what was leased was land and
superstructure was dismissed on 31-07-1991. So on the date on which the respondent filed his counter i.e., in April 1992, to the petition for
eviction u/s 10(2)(1) of the Act, he knew very well that the Supreme Court had confirmed the Rent Controller''s findings that the lease was in
respect of land and superstructure and that the petitioners were tenants of the respondent, in respect of the land and superstructure. Therefore, the
stand taken by the petitioner in the R.C.O.P. No. 2732 of 1991 that there was no landlord-tenant relationship in respect of the superstructure is
not a bona fide denial of the tenancy and of the title of the respondent to the superstructure. In this regard too, the findings of the Rent
Controller/Appellate Authorities do not need any interference. The respondent which is the society for prevention of Cruelty to Animals has been
dragged into litigation for several years without even an iota of justification. There has been deliberate, callous abdication of the duty to pay rent
and assertion of ownership of the superstructure against the right of the respondent knowing full well this issue has been decided.
As regards the allegation of act of waste, the Rent Controller had found that the closing of the windows amounted to act of waste. It is true that
the decisions referred to by the counsel for the petitioner lay down that unless there is material impairment of the value and utility of the building,
there can be no act of waste. But, it was pointed out by the learned counsel for the respondent that no ground was raised in the grounds of appeal
challenging the finding regarding act of waste. The Appellate Court also points out in Para No. 12 of the judgment that neither was any ground
raised in the appeal against the finding regarding the act of waste nor was any argument advanced in this regard. In those circumstances, the
Appellate Authority did not think it necessary to render any finding on the issue. When the petitioner themselves had not challenged the finding
regarding act of waste before the Appellate Authority, it is a moot question whether this Court should give a finding in this regard. The judgment in
R.C.A. shows that the learned Appellate Authority had recorded a finding that regarding act of waste, there was no challenge made by the
petitioners.
In these circumstances also, since the order of eviction on the ground of wilful default and denial of title has been confirmed by this order, this
Court sees no reason to go into the question of whether the Rent Controller''s finding regarding acts of waste is right or not. Therefore, these Civil
Revision Petitions are therefore, dismissed with costs of Rs. 5000/- (Rupees five thousand only) in each revision. Consequently, the connected
C.M.Ps. are also dismissed.