V. Rajendiran vs Naseema Iffath

The present Civil Revision Petition has been filed to set aside the Fair and Decreetal Order of dismissal dated 17.07.2019 passed in R.C.A.No.11 of 2016 on the file of the learned Subordinate Judge, Vaniyambadi, Vellore District and set aside the fair and decreetal order dated 29.11.2016 passed in R.C.O.P.No.4 of 2014 on the file of learned Rent Controller / Principal District Munsif Court, Ambur, Vellore District.

The case of the petitioner / tenant is that the respondent / landlord filed R.C.O.P.No.4 of 2014 on the ground of willful default. After receiving the entire arrears of differential amounts from the petitioner herein, the eviction process cannot be initiated by the respondent. The petitioner herein is paying the contractual monthly rent to the respondent ever since the date of inspection as the tenant and continued to pay the same even after initiation of proceedings and even during the Corona Pandemic.

It is the further case of the petitioner that he has got no legal knowledge and when the respondent filed petition for fixation of fair rent, the respondent tendered the rent fixed by the court, but the same was refused by the respondent, though she was continued collecting the contractual monthly rent and the respondent cannot now come and say that the petitioner is in mere default. The petitioner has been made to evict on the ground of willfull default and on the date of filing of the petition, there was no arrears of rent payable by the petitioner. Thereafter, the petitioner had preferred R.C.A.No.11 of 2016 on the file of Sub Judge, Vaniyambadi seeking to set aside the order passed in R.C.O.P.No.4 of 2014 dated 29.11.2016. The appellate court after considering the averments, counter averments and the judgment placed on either side had dismissed the said R.C.A.No.11 of 2016. Challenging the orders passed by the trial court as well as the appellate court, the petitioner is before this Court.

The case of the respondent/landlord is that she has filed R.C.O.P.No.4 of 2014 against the petitioner / tenant for eviction under Section 10(2)(i) of the Tamilnadu Building Lease and Rent Control Act, 1960. She had purchased the property under registered sale deeds dated 14.08.2003, 17.12.2003, 20.04.2004 and 28.04.2004 and that the petitioner, who is the tenant under the petition mentioned property had used the same for commercial business purpose and the petitioner is running a Textile Shop under the name and style of "Sri Ragavendra Textiles and Readymades" for a monthly rent of Rs.1,900/-. Aggrieved by the said low payment, the respondent / landlord earlier, filed R.C.O.P. No.3 of 2008 for fixation of fair rent and by order dated 23.12.2010, the said rent was enhanced to Rs.5,286/- by the Rent Controller and the petitioner / tenant filed an appeal R.C.A .No. 12 of 2011, which was heard and dismissed on 28.08.2012 and order of Rent controller on fixation of fair rent was confirmed. The petitioner herein had not preferred any revision or appeal against the said order passed in RCA and has not paid the enhanced rent amount to the respondent / landlord and the respondent had issued a legal notice dated 17.03.2014 claiming arrears of rent for the period from 11.01.2008 to 31.03.2014, which is for about 75 months, totalling an amount of Rs.2,53,950/- being the difference of the rent amount, as per the order passed by the Appellate court. Immediately, the petitioner sent a sum of Rs.2,53,950/- to the respondent by way of demand draft, after being aware of the enhanced rent, the petitioner had failed to pay the differential rent and committed willful default in paying the differential amount, hence prayed for evicting the petitioner on the ground of willful default.

Further, the respondent before the court below had relied on various Judgments and stated that in a case where fair rent was not paid, a tenant had preferred an SLP against the order of High court, wherein the High Court has confirmed the order of eviction passed by the rent controller on the ground of willful default and the Hon'ble Supreme Court has also dismissed the SLP, only after the dismissal, the tenant has paid the arrears of rent and in that case it was held as 'willful default' and prayed to take the same view and dismiss the present petition.

A counter was filed by the petitioner herein before the court below denying all the averments except the fact that initially he was paying a rent of Rs.1,900/- and the amount was enhanced to Rs.5,280/-. The petitioner herein had paid the rent regularly without delay and default and there is no arrears of rent, such as 75 months arrear amount to Rs.2,53,950/-. As the petitioner / tenant had regularly paid the monthly rent and there was no default in payment and it is the respondent, who had wantonly refused to receive the rent with ulterior motive and immediately after receipt of the legal notice of the respondent dated 17.03.2014, the petitioner had immediately sent the entire rental amount of Rs.2,53,950/- by way of Demand draft dated 28.03.2014. The respondent / landlord received the same and there is no arrears of rent, as on date of filing of this petition and hence, there is no delay or willful default and prayed for dismissal of the same.

It is the further case of the petitioner / tenant that on 30.04.2014, R.C.O.P., was filed by the respondent, when the respondent / landlord has admitted the fact that the Demand draft has been encashed and there is no rental arrears to be paid by the petitioner / tenant, it is clear that the agreed rent has been fully paid by the petitioner without any default. The respondent also admitted that the differential rent between the contractual rent and enhanced rent was paid by the petitioner in a lumpsum on 28.03.2014 after receipt of legal notice issued by the respondent / landlord, hence the petitioner contended that there is no willful default committed by him and the owner having admitted the fact that there is no arrears of rent, the respondent has chosen to file R.C.O.P. for evicting the petitioner. The court below has also allowed the prayer of the respondent, however, RCA was preferred by the petitioner and the same was also dismissed, hence seeks to set aside the order passed in RCOP as well as in RCA.

Heard the learned counsel for the petitioner and perused the documents placed on record. Though the court notice was served on the respondent on 12.02.2021 and private notice through lower court counsel was served on 22.01.2021, there is no representation for the respondent either-in-person or through learned counsel.

Admittedly, it is the case of the petitioner that the respondent / landlord wantonly evaded to receive the differential rent amount and hence the petitioner was not at default. The petitioner was willing to pay the amount, he also tendered the differential rent amount to the respondent / landlord immediately, which was not accepted by the landlord and prayed for setting aside the order of the Principal District Munsif, Ambur who had erred in passing the order that the petitioner herein had committed willful default, for which he is liable to be evicted from the property.

Further from the perusal of the typed set of papers, it is seen that as against the said Judgment in R.C.O.P., an appeal was filed by the petitioner herein by way of R.C.A. wherein the petitioner reiterated the same points which was canvassed before the Rent Controller. He submitted that landlord has not put any suggestion to the tenant to deny the same regarding amount rendered by the petitioner and non receipt of the same by the owner. The landlord with the ulterior motive has not received the rent and filed the petition and immediately, the petitioner sent the Demand draft on the same day of receipt of the notice and the same was not considered by the court below, as there was no delay or default in payment of monthly rent to the respondent at any point of time. As there was no arrears of rent, as on date of filing of the petition, the court below ought to have rejected the eviction petition, as there was no willful default, is the aversion of the petitioner.

When the petitioner has paid the entire arrears of rent, for the schedule mentioned property after receipt of legal notice, the court ought to have considered the fact and Section 10(2) (1) of the Tamilnadu Building (Lease and Rent Control) Act stipulates that "the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable,..." But in this case, immediately, after receipt of notice, the petitioner had paid the arrears through Demand Draft and the same was encahsed by the owner, would prove that there is no arrears of rent, is the contention of the petitioner. Further, the petitioner is running a textile shop for his livelihood and prayed for allowing the present Civil Revision Petition.

Further, the petitioner to substantiate his contention has relied on the Judgment of this Court [M.K.Ramaswamy Vs. A.Krishna Menon] reported in (1994) 2 MLJ page 7, wherein at Paragraph No.7 it is held as follows:-

"7. The Supreme Court also considered the situation where no notice was issued by the landlord demanding the arrears of rent. In such a situation the Supreme Court held as under:

62.... We are unable to accept the view that whether two months notice for payment of rent is given or not, it will always be open to the controller under the proviso to determine the question of wilful default because that would render the very object to Explanation otiose and nugatory. We express our view in the matter in the following terms:

(1) Where no notice is given by the landlord in terms of the Explanation, the Controller having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful if he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time which the statute puts at 15 days and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.

(2) If the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord."

On going through the documents filed by the petitioner, it could be seen that the petitioner is a running textile shop in the building belonging to the respondent and when the respondent / landlord requested the petitioner to pay reasonable rent for the property, as it was only a sum of Rs.1,900/-, which is very low compared to the market value in the Ambur town, the tenant did not accept the said request, hence she had no other option, but to file a petition for fixation of fair rent in R.C.O.P.No.3 of 2008 for enhancement of rent. The said petition was allowed on 23.12.2010, wherein a sum of Rs.5,286/- was fixed as fair rent. The petitioner failed to pay the same, but filed the appeal, viz., R.C.A.No.12 of 2011, however, the Appellate authority had dismissed the appeal filed by the petitioner and the order of the Rent Controller has become final. Since the petitioner intentionally and deliberately ommitted to pay the enhanced rent, the petitioner issued legal notice on 17.03.2014 claiming arrears of rent for the period from 11.01.2008 to 31.03.2014, which is for 75 months, thereafter, the respondent sent Demand Draft for Rs.2,53,950/- to the respondent. Thereafter, the respondent preferred R.C.O.P.No.4 of 2014 before the Principal District Munsif, Ambur and by an order dated 29.11.2016, the court below ordered evicting the petitioner and to deliver vacant physical possession of the petition property to the respondent. As against the same, the petitioner preferred an appeal in R.C.A.No.11 of 2016 before Subordinate Judge Cum Rent Controller/ Appellate Authority and the same was dismissed on 17.07.2019 by confirming the order of Rent Controller, Ambur dated 29.11.2016. The petitioner has not filed any appeal / revision petition against the order dated [fixation of fair rent] 23.12.2010. The respondent / landlord has filed R.C.O.P., in the year 2014, i.e., on 30.04.2014 seeking for a direction to the petitioner / tenant to vacate and deliver the physical possession on account of willful default committed by him and rightly the Rent Controller had considered the said petition and rejected the same. The appellate court after considering the prayer of the petitioner had dismissed the same.

The petitioner's contention is that he was in the habit of paying the monthly rent irregularly to the landlord and when he came to know that that he has to pay the rent on or before 10th of every month succeeding english calender year of every month, he has not paid the same and the respondent filed a petition for willful default and stated that the petitioner / tenant has to be vacated on the ground that from 11.01.2008 to 31.03.2014, for 75 months, he has not paid the differential amount which has been fixed by the Rent Controller in R.C.O.P.No.3 of 2008, and an appeal was also preferred before the Appellate court, wherein the same was dismissed on 28.08.2012 and the order of the Rent controller had become final. From 28.08.2012 till the year 2014, when she sent a notice on 17.03.2014, the petitioner, has not paid the differential amount, but on 28.03.2014, he has taken the Demand draft and paid the same. Now, the petitioner's statement that there is no willful default on the ground that he has immediately paid the same as per Act, cannot be accepted because the Appellate Court court has fixed the rent enhancing the earlier amount, but for two years he has not paid the differential amount and from the date of filing the RCOP, the petitioner has not paid the same.

On going through the documents filed in the typed set of papers, it is seen that respondent / landlord has filed the said petition under Section 10(2)(i) of Tamilnadu Building (Lease and Rent Control) Act, 1960 to evict the petitioner / tenant from the petition mentioned property on the ground that he has not paid the fair rent fixed by the Rent Controller, as per the order passed in R.C.O.P. No. 3 of 2008, which was also confirmed in the R.C.A. No.12 of 2011. Till the date of filing the petition in R.C.O.P. No. 4 of 2014, the petitioner has not paid the said amount and only when the respondent / landlord sent a legal notice, as per order passed by the Rent Controller, the petitioner has paid the said enhanced amount, however, there was 75 months of arrears. Immediately, the petitioner seems to have paid the entire amount of Rs.2,53,950/- by way of Demand Draft dated 28.03.2014 and according to the petitioner / tenant, there is no delay or willful default on payment of the rent.

As per the above said statement made by the petitioner / tenant, it is seen that he has admitted that the fair rent, which has been fixed to Rs.5,286/- from Rs.1,900/- by the Rent Controller and directed the petitioner / tenant to pay the enhanced amount from the date of petition and against the said order, the tenant has preferred an appeal in R.C.A. No.12 of 2011 and the same was dismissed. Even after dismissal of the appeal, the tenant has not paid the said differential amount or the enhanced rent amount. He kept on paying only Rs.1,900/- as rent and put the blame on the landlord that she is not ready and willing to accept the said rent.

When the tenant has bounden duty to pay the fair rent fixed by the court below, now, he cannot come and plead that he had immediately paid the said amount after receipt of the said notice. The petitioner is very well aware that the said R.C.A.No.12 of 2011, which was earlier filed by him was dismissed, he is supposed to have paid the amount of Rs.5,286/-per month, but failing to do so, but later on immediately, paying the same, will amount to willful default.

It is also further seen that the petitioner and the respondent are the tenant and landlord respectively and the landlord has filed the R.C.O.P 3 of 2008 seeking for enhancement of rent from Rs.1,900/- and when the Rent Control Authority had enhanced the rent from Rs.1,900 to Rs.5,286/-, the same has not been challenged by way of filing the Civil Revision Petition by the petitioner / tenant, therefore, it is clear that he has to comply with the order passed by the court below, however, the petitioner failed to do so and this itself would amount to willful default. When the said facts are admitted by the tenant herein wherein in the certified copy of the order was also found that the enhanced amount has to be paid from the date of petition onwards and he has not preferred any appeal or revision before any Court, then, he is liable to pay the monthly enhanced amount of Rs.5,286/- to the landlord, which he cannot deny and he paying the said amount after receipt of legal notice, is definitely not in confirmity with the order passed by the court below and the respondent / landlord had no other option other than to file a R.C.O.P for eviction under willful default.

At this belated point of time, the petitioner cannot plead that he was paying the said amount and the landlord did not receive the same, without any proof. That apart, the petitioner has stated that he tendered the said amount but the same was not received by the landlord. It is his duty to get direction from the court below regarding the mode of deposit. When there are several modes available, nowadays for sending the rent to landlord, he has refrained from doing so and now, he cannot come and plead that as soon as the landlord sent a legal notice, immediately, he has paid the rent, hence there is no willful default. The Order of the R.C.O.P., is of the year 2008 and the order of R.C.A is of the year 2012 and the petitioner paid the amount on 28.03.2014, the same will definitely prove that the petitioner herein has not taken any steps to show his bonafides to pay the said rent to the landlord and definitely, it amounts to willful default and this Court is not inclined to interfere with the order passed by the Rent Controller as well as the appellate Authority.

It is also seen that this Court in the Judgment reported in 2014 5 CTC 667 [P.Thangamaniammal Vs.K.Ramachandra] has held that tenant not paying arrears of differential rent despite High Court Order and that SLP is pending and matter has not attained finality is not tenable. The relevant portion is extracted hereunder:-

".... Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (T.N.Act 181 of 1960), Section 10(2)(i) Willful default - Difference in fair rent and contractual rent - Appellate Authority fixed fair rent in 2004 - Landlord's revision for enhancement though ordered, Tenant's modified in 2012 - Tenant did not pay arrears of differential rent despite High Court Order - Contention of Tenant that SLP is pending and matter had not attained finality, not tenable - SLP dismissed two months earlier-Tenant paid arrears after six months from date of High court's order and also after order passed in Section 11(3) petition - Willful default made out - Order of eviction confirmed - Tenant's Revision dismissed."

When willful default is committed by the tenant against the landlord is proved this Court is inclined to confirm the Fair and Decreetal Order dated 17.07.2019 passed in R.C.A.No.11 of 2016 on the file of the learned Subordinate Judge, Vaniyambadi, Vellore District and the fair and decreetal order dated 29.11.2016 passed in R.C.O.P.No.4 of 2014 on the file of learned Rent Controller / Principal District Munsif Court, Ambur, Vellore District.

With the aforesaid observations, the present Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.