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Judgment
S.S. Subramani, J.—These two revisions are by the tenant. The subject matter and parties are the same in both the revisions.
C.R.P. No. 1836 of 1989 arises from the order in R.C.O.P No. 359 of 1984, on the file of the Rent Controller (Principal District Munsif),
Coimbatore. C.R.P. No. 1837 of 1989 arises from the order in R.C.O.P.No. 338 of 1982, on the file of the same Court.
R.C.O.P. No. 338 of 1982 was filed by the landlord, respondent herein, for the purpose of eviction on the grounds of wilful default in the
payment of rent, change of user, and also on the ground that he requires the premises in question for additional accommodation, for his business.
The default that is mentioned in R.C.O.P No. 338 of 1982 is mentioned in paragraph 7 of the eviction petition. In the said paragraph, he has
stated;
The respondent is very irregular in the payment of the rents. As on 1.5.1981, the respondent was in arrear: of rent, to the extent of Rs. 5000/- and
therefore, or 1.5.81, the respondent has executed a promissory note for a sum of Rs. 5000/-in favour of the petitioner, agreeing to repay the same,
with interest at 18% per annum In spite of the lawyer''s notice, dated 10-3-82 (which was acknowledged by him, but no reply) the respondent ha:
not paid the said sum of Rs. 5000/-. The respondent ha paid the rents for the tenancy months of August 1981 only on 22-10-81 and the rent for
the tenancy month of September 1981 only on 1.2.81. So also, the rent for the tenancy month of October 1981 has been paid only on 1.12.1981
and the rent for the tenancy month of March 1982 has been paid only on 21.5.1982. Thus, the respondent is very indifferent in payment of the
rents on the due date and he is liable to be evicted on the ground of wilful default in payment of the rents as contemplated in Section 10(2)(i) of the
Act"".
According to the petitioner, the tenancy month is according to English calendar and the rate of rent is Rs. 750/-. The rent is to be paid on the
first of every succeeding month. The said Eviction Petition was filed on 17.9.1982.
R.C.O.P. No. 359 of 1984 was filed in November 1984 only on the ground of default in payment of rent, i.e., for the period from the month of
November 1983 till 31.10.1984 (for 12 months). Thus, the respondent has stated that a sum of Rs. 9000/- was due towards rent. Except for a
paltry sum of Rs. 1500/- paid on 30.7.1984, no other amount was paid in spite of demand and a lawyer''s notice issued on 17.10.1984.
The tenant opposed the eviction petition, R.C.O.P. No. 338 of 1982, contending that he is not a defaulter in payment of rent, that there is no
change of user, and that the claim of the landlord for additional accommodation is lacking in good faith.
The tenant further contended that the promissory note dated 1.5.1981 was executed not for any default committed by him, but he borrowed the
amount for his business purposes, and that the same has been discharged.
In the counter to the second petition, i.e., R.C.O.P. No. 359 of 1984, the main contention of the tenant is that when the first petition for eviction
is pending consideration, a second petition for the same purpose is not maintainable and is barred under the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960. He does not answer the allegations regarding the default in payment of rent.
Both the petitions were tried jointly and evidence was recorded in R.C.O.P. No. 338 of 1982. On the side of the petitioner, Exs. A-1 to A-39
were marked and the landlord examined himself as P.W.I. The tenant examined himself as R.W.I, and Exs.B-1 to B-12 were marked on his side.
The Rent Controller, as per order dated 17-2-1988, dismissed the petitions. The Rent Controller held that the promissory note executed by
the tenant on 1-5-1981 is not towards arrears of rent, and the execution of the promissory note cannot be taken into consideration for the purpose
of finding out whether the tenant has committed default in payment of rent. The Rent Controller was also of the view that the tenant has not
committed any wilful default. On the date of the first eviction petition, no amount was due to the landlord towards the arrears of rent, and hence the
petition for eviction on the ground of wilful default in the payment of rent is not maintainable. The Rent Controller further found that the claim for
additional accommodation is lacking in good faith. It is also found that there is no change of user by the tenant.
The matter was taken on appeal by the landlord before the Appellate Authority. The Appellate Authority allowed the Appeals on two grounds,
namely, (1) wilful default, and (2) there is change of user.
Regarding the claim of the landlord on the ground of additional accommodation, the Appellate, Authority also confirmed the finding of the Rent
Controller.
While allowing the appeals, the Appellate Authority ordered eviction. In holding that the tenant had committed default in paying the rent, he
took note of the fact that there is no reason given by the tenant for not paying the rent for 23 months consecutively, and in spite of orders of Court,
he was not paying the amount regularly. The Appellate Authority took note of the fact that even though a sum of Rs. 6500/- towards the arrears of
rent was in Court deposit, the tenant was obstructing the landlord from receiving the rent through Court. The Appellate Authority was also of the
view that the only explanation given by the tenant for nonpayment of rent was, the landlord was giving publicity against the interest of the tenant
which has affected his business was not correct. The Appellate Authority also held that the second petition is maintainable during the pendency of
the first petition for eviction. It is also held that there is a change of user. The building was given to the tenant for conducting business in stainless
steel vessels, but that has been converted into a ready-made sales depot. The correctness of the decision is questioned by the tenant in these
revisions.
The points that arise for consideration in these revisions are:-
(1) Whether the tenant is liable to be evicted on the ground of default in paying the rent, and whether the said default is willful?
(2) Whether the tenant is liable to be evicted on the ground of different user?, and
(3) Whether the second petition for eviction, namely R.C.O.P. No. 359 of 1984, is maintainable when R.C.O.P. No. 338 of 1982 is pending
consideration?.
I will first answer the third question regarding the maintainability of the second petition.
Mr. G.Subramaniam, learned senior counsel appearing for the petitioner (tenant) placed reliance on two decisions of this Court in support of
his contention that the second petition is not maintainable when the first petition is pending. The decisions are:- AIR 1952 Mad 283 : 64 L.W. 676
Manepalli Sitaramanjaneyulu v. Pachigolla Krishnayya and another and 1989(1) L.W. 155 Durgai Ammal v. R.T.Mani.
Mr. G.Masilamani, learned senior counsel for the respondent (landlord) placed reliance on two decisions of this Court, namely, K. Perumal
Chettiar Vs. V. Muthuswami, .
In Manepalli Sitaramanjaneyalu Vs. Pachigolla Krishnayya and Another, . This Court was considering the scope of S. 7(6) of the Madras
Buildings (Lease and Rent Control) Act (15 of 1946). In C.M.P. No. 4996 of 1949, this Court has held: ""A subsequent application for eviction
was made on the allegation that default had occurred and the tenancy became terminable before the date of the prior application for eviction. It
was held that the second petition by the landlord was not maintainable having regard to the provisions of sub-s. (6) of S.7. The ''ratio decidendi'' of
that decision was:
Once the application is rejected, the tenancy is deemed to continue. The landlord cannot allege in a subsequent application that the tenancy has
come to an end before the date of the rejection. That would be in the teeth of the express provisions of the enactment.
For more than one reason, the said decision cannot hold good in so far as this Court is concerned.
Firstly, the decision was over-ruled by a Full Bench of this Court in the decision reported in 1962 - II M.L.J. 218 : 75 L.W. 390(F.B.)
(supra). Secondly, the statute has been amended, and thirdly, the legal position is also now declared by the Apex Court otherwise.
While deciding the question in C.M.P. 4996 of 1949, the Court was declaring the law as it stood at that time; it was a condition precedent that
the contractual tenancy has to be terminated and only thereafter, eviction petition can be filed under the Rent Control provisions. According to the
law that was existing then, the first question raised would be whether the contractual tenancy has come to an end. Naturally, it followed that during
the pendency of the first application under those provisions, a second application cannot be maintained. That is why, in that case, it was held:"" The
landlord cannot allege in a subsequent application that the tenancy has come to an end before the date of the rejection.That would be in the teeth of
the express provisions of the enactment"". (Emphasis supplied)
In V. Dhanapal Chettiar Vs. Yesodai Ammal, , the Apex Court has held thus:-
.....It is not correct to say that S.106 of the T.P. Act merely providing for termination of a lease either by the lessor or the lessee by giving the
requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent
Acts do not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a
tenant, that is to say, there is no forfeiture in the eye of the law. The tenant becomes liable to be evicted under the State Rent Act, not otherwise.
Their Lordships have further held (at page 1750) that the various Rent Control Acts set up a complete machinery for the investigation of those
matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and that the Rent Control Act is a self-contained Code
by itself.
In AIR 1952 Mad 283 : 64 L.W. 676, their Lordships were considering a case under Madras Buildings (Lease and Rent Control) Act, 1946
(Act 15 of 1946). Thereafter, that Act was amended by Act 25 of 1949 and later, in 1951. Both these were temporary Acts. Subsequently, the,
present Act has been sought to be enforced, i.e., Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
Even when Act 25 of 1949 was enacted the provisions of Act 15 of 1946 had undergone a change. Under S.7 (6) of Act 15 of 1946, some
conditions were made. After the amendment, S.7 (6) of Act 15 of 1946 reads as follows
Where an application under sub-section (2) or sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject
to the provisions of this Act be deemed to continue on the same terms and conditions as before and shall not be terminated by the landlord except
on one or more of the grounds mentioned in sub-section (2) or sub-section (3).
The said provision is now included in S.10 (7) of the present Act, namely, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
In K. Perumal Chettiar Vs. V. Muthuswami, the only question that arose before the Full Bench was, whether the decision reported in AIR
1951 Madras 231 (supra) was correct. Taking into consideration the change in the statute, the Full Bench held that each default is a different cause
of action. When an earlier petition was dismissed, the dismissal was only for the reason that there was default before the filing of that application.
There is a subsequent default, and the landlord is getting a fresh cause of action. Nothing prevents him from instituting a separate proceeding. At
page 220 of the judgment, the Full Bench held thus :-
The Act no doubt gives protection against eviction to tenants notwithstanding the fact that the landlord had terminated the tenancy; but such
protection is given only to a tenant who is regular in the payment of the rents and only when other circumstances specified in sub-sections (2) and
(3) do not exist. When therefore a fiction is created by S.7(6) for continuation of the tenancy on the dismissal of the landlord''s application for
eviction, such continuance must be subject to the same conditions. Therefore there can be no impediment to the landlord availing himself of his
rights under the Act even during the pendency of an earlier application by filing a fresh one on the basis of grounds arising subsequently. It should
follow that the pendency of an application for eviction under the Act cannot prevent a fresh application being filed on the basis of subsequent
defaults or necessities. Indeed, there is nothing in the statute to prevent it. If so much is conceded, how can we hold that an application (the second
application) properly filed would become incompetent subsequently (relating as it does to a different default or subject-matter) simply because the
earlier application of the landlord happens to be rejected during the pendency of the second application. Such a contention is however advanced
on the theory that once the earlier petition is dismissed, the tenancy continues till at least that date and intermediate defaults cannot terminate the
tenancy. We shall consider that principle a little later after ascertaining whether it can be supported on any principle of res judicata"".
An order rejecting an application ordinarily relates to matters which exist on the date of the filing of the petition and subsequent events do not
generally form part of the subject-matter of adjudication. Section 10 gives finality to the decision of the authorities only in regard to matters that
have been finally decided in a petition. Subsequent events which cannot ordinarily form part of the issues in the case cannot therefore be held to
have been decided finally. Therefore, a mere rejection of an application cannot mean that the Controller or other authority has decided that no
justifiable ground for eviction accrued to the landlord since the filing of the application. It follows that the bar of a subsequent application which is
filed during the pendency of the first but based on different grounds cannot be justified under S.10 or on principles of res judicata.
The learned counsel further argued that the machinery provided for default during the continuance of the proceedings and the landlord has to
exhaust that remedy, and cannot file a separate application. According to the learned counsel, S.11 of the present Act provides the remedy for the
landlord regarding the arrears which have accrued subsequent to the institution of the proceedings,''. and he has to exhaust that remedy only. For
that purpose, he relied on the subsequent decision reported in 1989(1) L.W. 155 (supra). Paragraph 36 of the said judgment was read in support
of the argument, and it was also contended before this Court that being a Bench decision, the law declared by it is binding. Paragraph 36 of the
judgment reads as follows:-
Therefore if during the Rent Control proceedings, the tenant does not pay rent, the landlord can file an application in that respect before the
Controller and the Controller on his satisfaction will terminate the proceedings and direct the tenant to put the landlord in possession of the
premises. Thus, in the Act a special machinery has been provided to deal with non-payment of rent by the tenant during pendency of the Rent
Control proceedings. The landlord in disregard of or bypassing this provision cannot institute a fresh proceeding on the ground of non-payment of
rent. This apart, even as per the petition itself during the proceedings the tenant was paying rents in lump sum sometimes even once in 12 months
and the landlord has received them. Therefore non-payment of 7 months rent cannot be said to be wilful. It is not the landlord''s case that this rent
was not paid in spite of demands. Therefore, the present petition i.e., H.R.C.3487 of 1981, as regards the ground of non-payment of rent cannot
be sustained"".
It is true that the Bench in that case decided that the landlord has to exhaust the remedy provided under S.11, and he cannot file a separate
application regarding the arrears that had accrued subsequent to the institution of the proceeding. It was further contended before me that a judicial
decorum has to be maintained, and in case this Court doubts the correctness of the Bench decision, the matter has to be referred only to a larger
Bench, and that the matter should not be decided by me. For the said purpose, the learned senior counsel also relied on the following decision;-
Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane, Maharashtra
and others, and Shridhar Vs. Nagar Palika, Jaunpur and Others, .
In Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., it was held (at page 815) that, ""If the Bench of two judges in Jeet Ram''s
case found themselves unable to agree with law laid down in Motilat Sugar Mills case, they could have referred Jeet Ram''s case to a larger Bench,
but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same
Court in Motilal Sugar Mills"".
In Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane, Maharashtra and others, it was held thus:-
... In a multi-judge Court, the judges are bound by precedents and procedure. They could use their discretion only when there is no declared
principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a single judge or a Division Bench
does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial
process not to follow this procedure. In our system of judicial review which is a part of our Constitutional scheme, it is the duty of judges of
superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic
approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the
Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate
Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to
obey or not to obey such law and it ultimately falls into disrepute.....
In Shridhar Vs. Nagar Palika, Jaunpur and Others, , the Appellate Court held thus:-
It is well-settled principle of judicial discipline that if a single judge, disagrees the decision of another single judge, it is proper to refer the matter to
a larger Bench for an authoritative decision"".
On the basis of these decisions, the learned senior counsel wanted me to refer the matter to be decided by a larger Bench.
The proposition put forward by the learned senior counsel for the petitioner cannot be doubted. But, how far the same applies to the facts of
this case has to be considered. When a Full Bench of this Court has taken a contrary view in K. Perumal Chettiar Vs. V. Muthuswami, (j""pro),the
Bench decisions of this Court cannot be relied on as correct. Further, the Full Bench decision was not brought to the notice of the learned judges
who decided the case reported in 1989(1) L.W. 155 Durgai Ammal''s case.
A learned single judge of this Court had occasion to consider this question in Chekka Ramaniah and Another Vs. S. Mariappan and Another, .
The same argument was put forward before the learned judge also, and it was held by this Court that in view of the Full Bench Decision K.
Perumal Chettiar Vs. V. Muthuswami, ,the Bench decision cannot be followed. Further, the decision of the Supreme Court will apply only if the
judgment is by a Bench of equal strength. Naturally it follows that on the basis of the judgment of the Apex Court itself, the decision rendered by
the Full Bench has to be followed. It is that view the learned judge has also taken in Chekka Ramaniah and Another Vs. S. Mariappan and
Another, . Hence, I am constrained to repel the contention of the learned senior counsel for the petitioner that this matter may be referred to be
decided by a larger Bench.
The remedy provided under S.11 of the Act is only optional. The landlord is not bound to move the Rent Control Court regarding the rent that
has fallen due subsequent to the institution of the proceedings. It is only for his benefit.
In P. Lachiram Vs. K.N. Kumaresan, this Court was considering S. 11(4) of the Rent Control Act. It was held in paragraph 5 of the judgment
(at page 136) that, ""It is only to safeguard the interests of the landlords in relation to such recalcitrant tenants that a provision like S.11(4) has been
introduced"".
Again, the provisions of Ss.11(3) and 11(4) of the Act, when read together, will show that it is only a summary procedure. When the landlord
has got a right of a detailed proceeding under S.10 of the Act regarding the subsequent course of action, he cannot be obliged to follow the
summary procedure contemplated under S.11(3) of the Act. The later portion of the Full Bench judgment shows that the learned judges have
taken note of the situation. The relevant portion of the Full Bench judgment (at page 220) reads thus:-
Mr. S.K. Ahmed Meeran appearing for the petitioner, however, contends that as S.7-A provides for payment or deposit of rent during the
pendency of the proceedings for eviction in default of which an eviction order is to follow; it should be held that the statute has provided a
machinery to adjudicate defaults arising subsequent to the filing of an application for eviction that such subsequent events should therefore be
regarded as forming the subject matter of issue in the earlier petition and the rejection thereof would amount to an adjudication that there was no
subsequent default. But the terms of S.7-A do not justify the contention; they only impose a condition for entertaining a defence on the part of the
tenant to an application for eviction. They enable the Rent Controller or the Appellate Authority to direct the tenant to deposit rents accruing for
subsequent periods; if there is default therein, the tenant can be directed to deliver possession of the premises forthwith to the landlord. S.7-A has
no reference to the determination of any disputed question; it is intended only to prevent defaulters from continuing in possession of the property
taking advantage of the pendency of an application without at the same time performing their own part of the obligations. Secondly, it does not
cover grounds other than default of payment of rent, i.e., other grounds specified in Ss.7(2) and 7(3) which would justify eviction. It cannot,
therefore, be held that the rejection of the petition of the landlord by the Rent Controller would be tantamount to an adjudication against him of all
grounds justifying eviction which arose subsequent to the filing of the original petition for eviction.
In view of the binding precedent rendered by a Full Bench of this Court which was not brought to the notice of the Division Bench, I am not bound
to follow the Division Bench judgment. The Statute also does not prohibit the filing of an independent application, on a different cause of action. By
not invoking the right under S.11 of the Act, the landlord is not violating any public policy. He has only resorted to a right royal remedy by filing an
independent petition. The Appellate Authority has also held that the second application is maintainable. I confirm that finding of the Appellate
Authority. Hence, I hold that R.C.O.P. No359 of 1984, which is the subject matter of C.R.P.No. 1836 of 1989 is maintainable.
Let me now take up the contention regarding default in payment of rent, and whether the landlord has made out a case for eviction.
I have extracted (in the earlier part of this order) paragraph 7 of R.C.O.P.No338 of 1982. The said eviction petition was filed on 17.9.1982.
As on 1.5.1981, the tenant was in arrears of rent to the extent of Rs. 5,000/-, for which a promissory note was executed. There was delay in
payment of rent for the months of August, September and October 1981 and also for the month of March 1982. From April 1982 to September
1983, there is no complaint that the tenant has defaulted in paying the rent Therefore, it was held that merely because the tenant delays the payment
of rent, that cannot be construed as wilful, especially when the landlord has received the rent There is nothing on record to show that the
subsequent rent was received under protest The default by itself cannot be construed as wilful. This Court has to hold that the default was wilful as
has been held in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, To make a ground for eviction, it must be wilful default, which
means, ''deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing''. It was further held by the
Apex Court that ''wilful default'' means a deliberate and intentional default knowing fully well the legal consequences thereof. It must be an act done
intentionally, knowingly and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, needlessly or
inadvertently. Their Lordships also held that these facts will have to be proved by the landlord. Regarding the belated payment, except the
allegation that the rent was paid belatedly, the landlord has not given any evidence that the tenant has defaulted in paying the rent intentionally or
purposely. When R.C.O.P. No. 332 of 1982 was filed, there were no arrears of rent.
The other ground made mention of in paragraph 7 of the petition in R.CO.P.No. 338 of 1982 is that as on 1.5.1981, the tenant was in arrears
to the tune of Rs. 5,000/- and, therefore, executed a promissory note for the said sum. From the said allegation, the learned senior counsel
appearing for the landlord, respondent herein, wanted me to infer that even before 1.6.1981, the tenant has committed default, and, he being a
chronic defaulter, the payment made from 1.5.1981 must be construed in the same way. The said contention cannot be accepted. Both the
Authorities below have held that the promissory note was executed for the business purpose of the tenant, and the allegation to the contrary that it
was towards rental arrears is not correct. Ex.A.24 is the promissory note. Nothing is said in the promissory note about the rental arrears. Again
Ex.A.25 is a notice issued on 10.3.1982. There also the landlord does not say anything about the promissory note as executed towards rental
arrears. In fact, in the notice he has stated that the promissory note was executed for the purpose of business of the tenant. He wanted to return the
same within three days. In fact, the promissory note could not have been executed by the tenant in favour of the landlord, towards rental arrears.
Admittedly, the rent is only Rs. 750/-. Even according to the landlord, till June 1981, his father was receiving the rent and was issuing the receipt.
Ex.B.1 is the receipt evidencing payment of rent till June 1981. So, the contention of the landlord that the promissory note was executed towards
rental arrears cannot be correct, and the finding of the authorities below that the promissory note was executed for"" ''extraneous purpose is upheld.
Even if for argument''s sake the contention of the landlord can be accepted for a moment, once a promissory note is executed in lieu of rental
arrears, the character of the rent thereafter changes into that of a negotiable instrument. In Ram Deo Vs. Umrao Singh, it was held by the Supreme
Court that when the landlord has taken an agreement from the tenant, regarding the past arrears of rent, to be paid in instalments, by taking that
agreement, a new cause of action has arisen to the landlord independent of the lease, and, by taking the agreement, the past arrears of rent stands
discharged. The character of the amount towards arrears of rent changes into an amount towards the promissory note. In the said decision, their
Lordships of the Apex Court have held (at page 60) as follows:-
As a result of the agreement, the pre-arrangement arrears lost their original character as ""arrears of rent"" and assumed the character of a
consolidated debt which under the terms of the agreement was payable by the debtor-appellant in monthly instalments. The agreement had in
respect of the past arrears brought into being a new cause of action and created a liability against the tenant, independent and distinct from that
founded on the rent note or the lease of the premises. Consequently, if the appellant, in breach of the agreement, defaulted in paying any instalment,
the remedy of the respondent-creditor would be to file a suit for the recovery of the amount due on the basis of the agreement. Thus the arrears of
three instalments due under the agreement had ceased to be ""arrears of rent"" and could not be tacked on to the arrears of three months rent due at
the date of the notice, for the purpose of S.3(1)(a).
Hence the contention of the landlord that the tenant is liable to be evicted on the ground of arrears of rent in R.C.O.P. No. 338 of 1982 cannot be
accepted.
The Rent Controller found that there is no wilful default in payment of rent. The Appellate Authority reversed the same, only on the ground of
belated payment. The said finding of the Appellate Authority is reversed, and that of the Rent Controller is restored. I hold that in R.C.O.P. No.
338 of 1982, the tenant is not liable to be evicted on the ground that he has committed wilful default.
But the decision in R.C.O.P. No. 359 of 1984, filed by the landlord for subsequent arrears is entirely different. As stated earlier, the landlord
has alleged that the tenant has committed wilful default in paying the rent from November, 1983. The said fact is not disputed. Even after the filing
of the eviction petition, the tenant did not make any at-; tempt to deposit the amount. Before filing the said petition, the landlord issued Ex.A-28
notice on 17.10.1984, asking the tenant to surrender the building in view of the default committed.
In the said notice (Ex.A.28), the landlord has stated that unless the entire arrears are paid including the amount covered by the promissory note
within three days, the landlord will be constrained to take legal action for eviction. The eviction petition was filed in November 1984 pursuant to
Ex.A.28 notice.
As stated earlier, the tenant has no explanation why he did not pay the rent for the period mentioned in the petition. His only contention is that
the second petition is not maintainable.
An argument was raised by the learned senior counsel for the petitioner (tenant) that the landlord has availed his opportunity by filing an interim
application under S.11(4) of the Act and wanted the arrears that had accrued and became due after the institution of the proceedings, to be
deposited into Court.
The landlord filed I.A.No. 387 of 1983 on 22.12.1983. I have perused the application. It is true that the landlord filed I.A.No. 387 of 1983,
requesting for a direction, as contemplated under S.11 of the Act, to the tenant to pay the sum of Rs. 5,0O0A with interest, as evidenced by
Ex.A.24. Admittedly, Ex.A.24 was before the institution of the proceedings. It is dated 1.5.1981, and is not for any arrears that had accrued and
become due after the institution of the proceedings. Hence it cannot be said that the landlord has availed of any opportunity under S.11 of the Act,
and the learned counsel for the petitioner (tenant) was unable to convince this Court that any orders are passed on the said application.
The landlord filed I.A.No. 343 of 1984, and, for one more year the matter was kept pending, without any orders. The tenant did not pay the
rent in spite of the said application. It was only on 5.11.1985, an order was passed. But, by that time, rent for 23 months has been defaulted. The
Court directed the tenant to pay a sum of Rs. 13,500/-. That amount was paid in two instalments. The only explanation given by the tenant was
that because of the adverse publicity made by the landlord, the tenant could not do business properly in the premises. This was not stated in the
objection to the petition, and the same was also not put to the landlord while he was examined as P.W.1 The explanation offered by the tenant for
not paying the rent continuously for more than 23 months, cannot be supported or justified. The explanation offered by him was not accepted by
the Appellate Authority, for valid reasons.
After the institution of the Rent Control proceedings, a third party filed a suit against the landlord as O.S.No. 1637 of 1986 for injunction,
restraining him from disturbing his business and possession. The subject-matter of the proceeding was scheduled premises. According to the
tenant, the said suit was filed at the instance of the present landlord.
When the tenant deposited the rent as per orders of Court, the landlord filed an application to get the amount through Court by filing a cheque
application. The tenant objected to the same. According to him, the landlord should not be permitted to withdraw the amount, in view of the
pendency of the suit O.S.1637 of 1986. That also shows the conduct of the tenant and also his attitude, namely, that he did not want to pay the
rent in spite of orders of Court, and further, he prevented the landlord from receiving the rent, which was legally due to him. The amount deposited
was regarding past arrears that had accrued even before the institution of O.S.No. 1637 of 1986. Normally the tenant should not have objected to
the landlord receiving the amount, but we find that he has caused obstruction and prevented the landlord from getting that amount.
It has been held by this Court consistently that if the tenant pays the rental arrears in a lump sum, that will not discharge his liability, nor can that
be a valid explanation, and the tenant will still be regarded as a wilful defaulter.
The learned counsel for the petitioner (tenant) contended that after the order of the Rent Controller, the tenant has deposited the entire rental
arrears till date, and so, according to him, even if there is any default, that ceases to exist, and hence, the tenant is not liable to be evicted from the
premises. For the said purpose, he relied on certain paragraphs, namely, paragraph Nos.4, 5 and 69 in the decision reported in AIR 1985 S.C.
582 (supra), and they read as follows:-
It may be mentioned here that before filing a suit for eviction of the appellant, the respondent on 17.9.79 sent a two months'' notice to the
appellant, through his Advocate to clear up the dues. The appellant on receipt of the notice paid up the amount of the arrears, amounting to Rs.
6,600/-, on 3.10.79, i.e., within the stipulated period of two months. But, the refondent contended that in view of the past conduct of the appellant
he was guilty of wilful default within the meaning of proviso to S.10(2) of the Act.
So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17.9.79 even prior to the filing of the suit, it
is manifest that on the date of filing of the suit, cause of action in praesenti having arisen, the suit should have been dismissed on this short ground
alone as being not maintainable. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing
of the suit have filed a suit for past conduct of the tenant. This appeal, therefore, merits dismissal on this ground alone. (Paragraphs 4 and 5).
XXX XXX XXX XXX
In Civil Appeal No. 1992 of 1982, a somewhat peculiar position seems to have arisen. It is true that, to begin with, the tenant did not pay the rent
for the months of June 1977 to January 1978 which led the landlord to issue a notice on 16.1.78 demanding payment of arrears amounting to Rs.
392/-. The tenant within 15 days of receipt of the notice (on 30.1.78) sent a detailed reply to the landlord and enclosed a Bank Draft of Rs392/-
which was, however, not encashed by the landlord and returned to the tenant after filing of the eviction petition, for reasons best known to him.
Therefore, since the tenant had already complied with the notice within the stipulated time envisaged by the Explanation to Proviso to S.10(2) of
the Art, by no stretch of imagination could he be called guilty of wilful default. On the other hand, the conduct of the landlord in filing a suit and not
encashing the Bank Draft was motivated with a view to get a decree for eviction on false excuse. Such a state of affairs could not be countenanced
by the court. In these circumstances, we are of the opinion that the arrears having been paid through the Bank Draft, the question of eviction of the
tenant did not arise nor did the question of default come into picture merely because the landlord wanted to harass him by filing an eviction petition.
The High Court was, therefore, clearly in error in passing the decree of ejectment against the tenant. We, therefore, allow the appeal and set aside
the order of the High Court evicting the tenant."" (Para 69).
The contention of the learned counsel for the petitioner (tenant) cannot be accepted. The paragraphs relied on by the learned counsel from the
judgment referred to supra S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, relate to a Civil Appeal pending before the High
Court. In that case, the question that came up for consideration was, whether there was a wilful default contemplated in the Explanation to S. 10(2)
of the Act. In the Explanation, it is stated :-
For the purpose of this sub-section, default to pay or tender rent shall be considered as wilful, if default was committed by the tenant in the
payment or tender of rent continuously after the issue of two months'' notice by the landlord claiming the rent.
(Emphasis supplied).
In Civil Appeal No. 1992 of 1982 (supra), what happened was, the landlord issued two months'' notice, claiming rent, and, after the expiry of the
period, eviction petition was filed. He did not seek eviction. What he wanted was only the rent, and that was paid before the expiry of the period
and before the institution of the petition. It was in such circumstances, their Lordships of the Apex Court held that the landlord had no cause of
action and that the tenant had not committed any default. In this case, Ex.A.25 and A.28 notices are entirely different. The landlord has sought
eviction on the ground of arrears of rent, and it is not two months'' notice as contemplated under the Explanation. This Court had the opportunity of
considering the difference of the notices, in C.R.P.No. 1045 of 1984 (YM Susuff v. Abusalih) (Order dated 21.3.1988). A learned Judge of this
Court (K.M. Natarajan, J.), in the said order, has explained the scope of notice coming under the scope of the Explanation and a notice not
coming within the Explanation. In the said order, it is held that to defeat the right of the landlord, the notice must be two months'' notice claiming the
rent, and within the said period, the tenant must have paid the rent, and only in that case, the eviction petition could be defeated on the ground that
the landlord has no cause of action. In all other cases, according to the learned judge, the question whether there is wilful default or not is a matter
for consideration.
The learned counsel also contended before me that an amount of Rs. 15,000/- was paid as advance, and the tenant is entitled to adjust the
same towards arrears of rent. If that amount is adjusted, on the basis of arrears on the date of filing of the second petition, the landlord cannot seek
eviction on the ground of default in payment of rent. The said Contention was not put forward before the Authorities below, nor was this raised as
a serious objection. What is the amount that has been given as advance is also not clear. The tenant has also no receipt to evidence payment of
advance and, therefore, he cannot adjust the so called advance. The landlord has stated, while he was examined as P.W.I, that his father had
received Rs. 15,000/-which is repayable only when the building is surrendered. His father is dead and there are other legal heirs. The father has
executed a will in which it is said that a sum of Rs. 15,000/- was received as advance. According to the tenant, he has paid a sum of Rs. 15,000/-.
But later he says in the cross-examination that out of Rs. 15,000/- he has received back a sum of Rs. 5,000/- towards the promissory note, and
the balance retained is only Rs. 10,000/-. Whether it is a deposit or a security, and that is the character of the amount received by the landlord''s
father, is not in evidence. The correct amount due to the tenant is also not in evidence. In cross-examination, P.W.1 says:-
He was examined on 18.12.1987. So, on that date, the amount retained by the landlord was only Rs. 10,000/-. Even on 5.11.1985, the Rent
Controller had passed an order, directing the tenant to deposit Rs. 13,500/-. So, naturally, there would have been no arrears. This Court has
consistently found that the tenant must exercise this option regarding the amount received by the landlord in excess. Till this date, the tenant has not
exercised the option. If he has not so exercised the option, i.e., whether that is to be adjusted in the future rent or should be returned to the tenant,
it is a matter for his volition. The landlord cannot decide it by himself.
Taking into consideration the above facts, i.e., the tenant not having raised the question before the Authorities below regarding the nature of
deposit and also the amount due, and also not having opted to adjust till date, this Court is of the opinion that the tenant cannot contend before this
court that he is not liable to be evicted since the landlord is in possession of the amounts due to him.
For these reasons, I hold that the tenant is liable to be evicted on the ground that he has committed wilful default in paying the rent. The finding
of the Appellate Authority that the tenant has committed wilful default in paying the rent is, therefore, confirmed. C.R.P.No. 1836 of 1989 which
arises from R.C.O.P. No358 of 1984 is, therefore, dismissed. The eviction order passed in that case is confirmed.
The other ground on which eviction is sought in R.C.O.P. 338/82 is, change of user. The Rent Controller has found that the tenant is not liable
to be evicted on that ground. The Appellate Authority has reversed the same.
Originally the tenant took the building in question on rent for the purpose of conducting business in stainless steel vessels. The building in
question is a non-residential one. The business is now changed, and a ready-made shop is being run in the building in question. According to
Appellate Authority, it is a change of user not permitted by the rental agreement. There is nothing on record to show that there was any prohibition.
Except the oral testimony of P.W.I, there is no evidence to show that the tenant was prohibited from doing any other business in the demised
premises.
In Gurdial Batra Vs. Raj Kumar Jain, it was held that the change of user cannot be a cause of action for a landlord for eviction unless the
interest of the landlord is prejudiced. A small change in the user would not be accountable, unless the act of change has affected the landlord in any
way. In this case, the landlord has not spoken anything about the prejudice that is caused to him due to the change of the business. The building
continues to be non-residential. There is no evidence in this case to show that the building is also affected by the change of user. The finding of the
Appellate Authority that the tenant is liable to be evicted on the ground of change of user cannot be supported. That finding of the Appellate
Authority is reversed, and that of the Rent Controller is restored. In the result, the C.R.P. No. 1836 of 1989 is dismissed. No costs. C.R.P.No.
1837 of 1989 is allowed. The eviction order passed by the Appellate Authority on the ground that the tenant is liable to be evicted on the around
of wilful default in payment of rent in R.C.O.P. 359 of 1984, is confirmed. In that case, i.e., in R.C.O.P.No. 359 of 1984, the tenant is liable to be
evicted. No costs.