IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.2.2009 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C. R. P. (NPD) No.1809 of 2006 and M.P.Nos.1 of 2006 and 1 of 2008 P.Kannaiah .... Petitioner/Tenant Vs. V.R.Chinnaraj .... Respondent/Landlord Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, against the fair and decretal order dated 5.12.2006 in R.C.A.No.61 of 2006 on the file of the Rent Control Appellate Authority(Principal Subordinate Judge) Coimbatore confirming the fair and decretal order dated 7.4.2005 in R.C.O.P.No.187 of 2003 on the file of Rent Controller(Principal District Munsif) Coimbatore. For Petitioner : : Mr.P.Valliappan,Advocate For respondent : : Mr.S.Parthasarathy,Senior Counsel for Mr.J.Ramakrishnan, Advocate. O R D E R The concurrent finding of the Rent Controller in R.C.O.P.No.187 of 2003 and the learned Rent Control Appellate Authority in RCA No.61 of 2006 under Section 10(2)(1) of the Tamil Nadu Buildings( Lease and Rent Control) Act 1960(hereinafter referred to as "Act") for an order of eviction is under challenge before this Court under this revision. 2. The facts in brief in the petition filed by the landlord in RCOP No.187 of 2003 before the learned Rent Controller runs as follows: The petitioner is the owner of the premises bearing door No.245 and Door No.248. Coimbatore. The respondent became a tenant under one Mr.Rajagopal previously. The petitioner had purchased the petition schedule property from Rajagopal as per the registered sale deed dated 25.11.1985. The tenancy was attorned in favour of the petitioner and the respondent was paying the rents to the petitioner after his purchase. The respondent is in occupation of the premises bearing door No.248 and he is carrying on Hotel Business thereon. https://hcservices.ecourts.gov.in/hcservices/ The rear portion bearing door No.245 is being used by the respondent for his residential purpose. After the purchase of the petition schedule premises, the respondent was paying a sum of Rs.500/-towards rent for door No.245 and subsequently it has been increased from time to time and the present rent payable is Rs.2,500/-. As far as door No.248 is concerned, the rent was originally fixed as Rs.450/- per month and it has been increased from time to time and the present rent is Rs.1,500/- per month. Thus the total rent payable by the respondent to door Nos. 245 and 248 comes to Rs.4,000/- per month. At the time of inception of tenancy, the respondent has paid Rs.1,000/- towards advance. Both door Nos.245 and 248 are contiguous in nature. The petitioner's son Boopathy is running a Bakery and Hotel under the name and style of "Boopathy Bakery and Hotel"in the rented premises belonging to Mr.Elango at Aerodrome Road, Singanallur, Coimbatore. He is paying Rs.3000/- per month towards rent. His landlord Mr.Elango had demanded him to vacate and hand over vacant possession. The petitioner, therefore, requires the petition schedule premises for the own use and occupation of his son Boopathy. The requirement of the petitioner is a bonafide one. The rent payable from February 2003 has not been paid. The respondent has sent two money orders of Rs.1,500/- each alleging that the rent is Rs.1500/- per month. Inspite of repeated demands, the respondent has wilfully and deliberately failed to pay the rent. The default committed by the respondent is wilful and therefore he is liable to be evicted from the petition premises. The respondent had filed O.S.No.747 of 2003 on the file of Court of District Munsif, falsely contending that the petitioner is attempting to interfere with his possession. The said suit is still pending. The petitioner had sent a legal notice dated 30.6.2003 calling upon the respondent to vacate and surrender the possession of the premises to enable his son to do his business. The respondent received the said notice and gave reply notice dated 7.7.2003 containing false and frivolous allegations. Hence the petition for eviction. 3. The respondent in his counter would contend that the petitioner along with his two wives had purchased the property, but he alone had filed the petition. There is no document produced by the petitioner to show that his two wives also authorised the petitioner to file this petition. Hence this petition is liable to be dismissed for non joinder of necessary parties. The rent was fixed for the petition schedule premises as Rs.425/- per month at the beginning of the tenancy and it was subsequently increased at the rate of Rs.25/- by every two years. The respondent has paid Rs.5,000/- towards advance and the rent paid by the petitioner to the petition scheduled premises was Rs.1,500/- per month. The respondent has also paid additional advance of Rs.10,000/- in the year 1987 and has paid a sum of Rs.15,000/- in the year 1987 and he has also spent about Rs.30,000/- for getting electricity and water connection. There is no agreement for paying separate rent for door Nos.245 and 248. The respondent has paid the agreed rent to the petition schedule premises https://hcservices.ecourts.gov.in/hcservices/ without any default till today. The respondent was sending the rent of Rs.1500/- to the petitioner every month through money order regularly which was also received by the petitioner. Adjacent to the petition schedule premises, there are seven more shops belonging to the petitioner. But the petitioner has chosen only this shop in their own use and occupation which itself is proved that their claim is not a bonafide one and only to harass the respondent, this petition has been filed by the petitioner. From the beginning of the tenancy, the rent was paid totally ie., the rent was paid for both door Nos.245 and 248 at the rate of Rs.1500/- per month. So the petitioner cannot claim that the respondent has paid the rent for one property. The respondent has not committed any wilful default. Since the petitioner had made an attempt to evict the respondent by force, the respondent has filed O.S.No.746 of 2003 which is pending before this Court. Since the respondent has filed the above case against the petitioner as a counterblast the petitioner has filed this petition for eviction alleging false and frivolous allegations. Hence the petition is liable to be dismissed. 4. Before the Rent Controller, the petitioner has examined himself as P.W.1 besides examining his son Boopathy as P.W.2. On the side of the petitioner, Exs P1 to P17 were exhibited. On the side of the respondent, the respondent was examined as R.W.1 and Exs R1 to R5 were marked. After going through the evidence both oral and documentary, the learned Rent Controller has held that the petitioner is not entitled to the relief under Section 10(3)(a)(iii) of the Act but allowed the petition under Section 10(2)(1) of the Act holding that the tenant/respondent had committed wilful default in payment of rent. Aggrieved by the findings of the learned Rent Controller, the tenant had preferred the appeal in RCA No.61 of 2006 before the learned Rent Control Appellate Authority, Coimbatore who after hearing the submissions made by the learned counsel on both sides, finding no reason to interfere with the findings of the learned Rent Controller had dismissed RCA No.61 of 2006 which necessitated the tenant to approach this Court by way of this revision. 5. Now the point for consideration in this revision petition is what is the rent for the petition schedule premises? and whether the revision petitioner/tenant had committed any wilful default in payment of rent? 6. Heard Mr.P.Valliappan, the learned counsel appearing for the revision petitioner and Mr.S.Parthasarathy, learned Senior counsel appearing for the respondent and considered their respective submissions. 7.The Point: According to the petitioner, P.W.1, the rent for the petition schedule shop(bearing door No.248) is Rs.1,500/- per month and the https://hcservices.ecourts.gov.in/hcservices/ rent for the house bearing door No.245 is Rs.2,500/- per month and that at the inception of the tenancy, the respondent had paid a sum of Rs.1000/- towards advance and that the tenant had committed default in payment of rent from February 2003. Both the Courts below have held that for the letter of demand under Ex P14 dated 5.6.2003, the respondent/tenant had not send any reply which will lead to a presumption that the monthly rent for the petition schedule premises is Rs.4000/- and not Rs.1,500/- as contended by the tenant. Ex P14 letter was followed by a legal notice sent through a lawyer dated 30.6.2003 under Ex P11 for which a reply was sent by the tenant under Ex P13 dated 7.7.2003 . Even under Ex P13, reply notice, the tenant had denied that the monthly rent for the petition schedule premises is not Rs.4,000/- per month as alleged in the legal notice under Ex P11 dated 30.6.2003 ,but it was only Rs.1,500/- per month. Apart from the pleadings in Ex P11 and Ex P13, there is no documentary evidence produced before the trial Court to show that the monthly rent for the petition schedule premises was Rs.4,000/-. The petitioner/landlord as P.W1 would admit in the chief examination itself that the respondent was sending the monthly rent through money order at the rate of Rs.1,500/- per month. Under such circumstances only if the landlord/respondent herein proves that the agreed monthly rent between the parties is Rs.4,000/-, he cannot claim, that the tenant/revision petitioner had committed default much less wilful default in payment of rent from February 2003 to the petition schedule premises. 8. The learned counsel appearing for the revision petitioner relying on a decision reported in C.Chandramohan-v- Sengottaityan (dead) by Lrs (2000(1)CTC 239 =AIR 2000 S.C.568) would contend that unless it is shown by the petitioner/landlord that there is a wilful in payment of rent by the tenant, he is not entitled to get an order in his favour under Section 10(2)(1) of the Act for eviction. The exact observation on which reliance was placed by the learned counsel for the revision petitioner at paragraph 14 of the above said dictum runs as follows: "That apart, in the order under challenge, the learned Judge of the High Court considered the plea of the appellant in the eviction petitions and noted that the ground for seeking eviction of the respondents was that the respondents 'failed to tender correct rent' and that was termed as"wilful default in payment of rent." We have gone through the pleadings of the parties. Mr.Venkataramani could not point out any averment in the eviction petitions regarding non payment of rent by the respondents for any specified month or period; he has, howevr, contended that if the pleadings are understood in the light of the notices exchanged between the parties, the plea of https://hcservices.ecourts.gov.in/hcservices/ wilful default in payment of rent can be culled out. We are afraid, we cannot accede to this contention. That is not the way the pleadings are construed. We are inclined to agree with the submission of Mr.S.Sivasubramaniam, learned counsel for the respondents, that the eviction petitions were not filed on the ground of non payment of rent for any specified period but were filed on the ground that the rent as claimed by the appellant(namely, at the rate of Rs.400, Rs.850 and Rs.700 per month) was not paid as the same is justified by the recitals in the eviction petitions. In view of the findings of the Appellate Authority regarding the quantum of rent payable by the respondents that the amount as pleaded by the respondents, namely, Rs.75,Rs.250 and Rs 200/- is correct and regarding the ground on which eviction is sought recorded on the basis of the pleadings and the statement of the appellant himself that the respondents had failed to tender the correct rent to the appellant and thereby committed wilful default, the High Court is right in holding that no wilful default was committed by the respondents in payment of rent". Relying on M/s Chordia Automobiles-v-S.Moosa (AIR 2000 Supreme Court, 1880(1)the learned counsel appearing for the revision petitioner would contend that the default in payment of rent will be considered as wilful default only if the tenant after the receipt of notice failed to pay the rent for a continuous period of two months. But in this case, admittedly the tenant was sending the rent at the rate of Rs.1500/- per month . Unless the rent for the petition schedule premises is determined whether it is Rs.4000/- per month as contended by the landlord or Rs.1,500/- per month as contended by the tenant, it cannot be said that the tenant had committed wilful default in payment of rent more particularly he had sent the rent due for the month of February 2003 onwards by money order to the landlord as admitted by him in his evidence as P.W.1.The relevant observation in the said Judgment of the Honourable Apex Court relevant for the purpose of this civil revision petition is as follows: " Wilful default means as act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in https://hcservices.ecourts.gov.in/hcservices/ terms of Explanation to the proviso of Section 10 (2). The dispute of rent admittedly was genuine. Further, we find conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter... ......... Thus, a consensus of the meaning of the words" wilful default" appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or other Acts referred to above." In support of his contention, the learned counsel for the revision petitioner would contend that since the tenant has been paying the rent of Rs.1500/- regularly every month to the landlord through money order, it cannot be said that he had committed wilful default unless the landlord proves that the monthly rent is Rs.4000/- per month for the petition schedule premises, relied on a decision reported in P.M.Punnose-v- K.M.Munneruddin(2003(3)CTC 348) wherein the relevant observation of the Honourable Apex Court is that "there appears to be a bona fide dispute as to the quantum of arrears, that is, as to what was the exact amount of rent paid by the tenant- appellant to the landlord-respondents and consequent upon which payment the liability for how many number of months came to be extinguished. The facts found indicate the tenant-appellant remitting the amount of rent by money orders before and after and even during the pendency of the proceedings and some of the money orders having been refused by the landlord-respondents. The present one is a fit case where the Controller should have exercised his power under proviso to sub- section (2) of Section 10 of the Act by passing an order thereunder and giving the tenant-appellant a reasonable time, not exceeding 15 days, to pay or tender the rent due by him to the landlord upto the date of such payment of rent." The same proposition of law was reiterated in M.Salem-v- Josephine Mary(2003(2)TNLJ 438 as follows: The facts of the said case are according to the petitioner, the rent payable is Rs.1500/- p.m. According to the respondent, it is Rs.2000/- per month. According to the landlord, the tenant had committed default in payment of rent from September 1997 to January 1998. According to the petitioner/landlord at the time of inception ie., on 15.2.1989, the rent was fixed at Rs.1000/-. Thereafter, it https://hcservices.ecourts.gov.in/hcservices/ was increased to Rs.1200/- in the year 1992 and the rent was further increased to Rs.1500/- in March 1996 and thereafter there was no increase. But according to the respondent, the rent was further increased to Rs.2,000/- but there was no material placed before the Rent Controller by the landlord to show that the admitted rent was Rs.2000/- per month. The tenant had sent the rent by money order at the rate of Rs.1500/- per month which was refused to by the landlord. Immediately, the tenant had issued notice to the landlord to furnish the name of the bank to enable him to deposit the rent in the account of the landlord. But without furnishing the name of the bank and his account number, the landlord had rushed to the Court. Under such circumstances, it was held that unless the quantum of rent was ascertained, it cannot be said that the tenant had committed default in payment of rent much less wilful default. For the same point, the learned counsel for the revision petitioner relied on Khusid Begum -v-Basheer Alam(2001(2)L.W.596) wherein the ratio decidendi is that unless it is shown by the landlord that the tenant had committed wilful, deliberate and actionable default , it cannot be said that he had committed wilful default in payment of rent, warranting an order of eviction against him in a petition under Section 10(2)(1) of the Act. 9.Both the Courts below under assumption and presumption have held that the monthly income for the petition schedule premises is Rs.4000/- in the absence of any reliable evidence. This Court while exercising revisional power in a concurrent finding cannot normally interfered with the findings of the Courts below unless it is shown that the finding of the Court below is perverse in nature and has failed to consider the evidence placed before the learned Rent Controller. There is absolutely no evidence on record to show that the monthly rent for the petition schedule premises was Rs.4000/-. Admittedly, the revision petitioner/tenant had sent the monthly rent to the landlord/respondent herein at the rate of Rs.1,500/- per month through money order. Unless it is shown that the agreed monthly rent for the petition schedule premises is Rs.4,000/- per month, it cannot be said that the tenant had committed default much less wilful default in payment of rent to the landlord. Under such circumstances, I am of the view that the learned Rent Controller shall first decide what was the agreed rent for the petition schedule premises and thereafter to decide whether the tenant had committed any wilful default in payment of agreed rent. If the rent is only Rs.1500/- per month for the petition schedule premises as contended and paid by the tenant through money order, then it cannot be said that the tenant had committed wilful default in payment of rent. The point is answered accordingly. 10. In fine, this civil revision petition is allowed and the Judgment in RCA No.61 of 2006 on the file of the learned Rent Control Appellate Authority, Coimbatore is set aside and the matter is remitted to the learned Rent Controller(Principal District Munsif) https://hcservices.ecourts.gov.in/hcservices/ Coimbatore for fresh trial for deciding first what was the rent for the petition schedule premises and then to decide whether the tenant had committed wilful default in payment of rent. Both parties shall appear before the learned Rent Controller(Principal District Munsif) Coimbatore on 2.3.2009. Both parties must be given sufficient opportunities to let in further evidence . The learned Rent Controller shall commence the trial, after fixing the date for trial and dispose of R.C.O.P.No.187 of 2003 on or before 30.4.2009. At this Juncture, the learned counsel for the revision petitioner would represent that the tenant had deposited a sum of Rs.50,000/- to the credit of R.C.O.PNo.187 of 2003 on the file of Rent Controller ( Principal District Munsif) Coimbatore. The said amount is to be adjusted towards the arrears of rent or future rent by way of filing appropriate application by the landlord at the relevant point of time. No costs. Consequently, connected M.Ps are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Principal District Munsif,(Rent Controller) Coimbatore. 2. The Principal Subordinate Judge, Rent Control Appellate Authority, Coimbatore. 3. The Section Officer, VR Section, High Court, Madras + 1 CC To M/s.P.Valliappan, Advocate SR NO.5698 + 1 CC To Mr.J.Ramakrishnan, Advocate SR NO.5683 C.R.P.(NPD) NO.1809 of 2006 KA {CO} TP/11.2.2009 https://hcservices.ecourts.gov.in/hcservices/