IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.08.2010 Coram The Honourable Mr.Justice G.RAJASURIA C.R.P.(NPD) Nos.1547 to 1549 of 2003 and C.M.P.Nos.16574 and 16576 of 2003 Rangaiah Chetty ... Petitioner in CRP 1547/2003 Ponnusamy ... Petitioner in CRP 1548/2003 Jambulingam ... Petitioner in CRP 1549/2003 Vs. 1. Feroz Khanoon (deceased) 2. Kader Fathima 3. Kameerunnissa 4. Pathurunnisa 5. Mohammed Ismail Banu 6. Mohammed Sath Sidiq Banu 7. Ameez Fathima 8. Mumtaz Begum 9. Mohamed Ismail 10.Mehraj Banu 11.Sabeera Banu 12. Ramzan Banu ... Respondents in all CRPs. (R8 to R12 brought on record as L.Rs. of the deceased 1st respondent vide order of Court dated 11.09.2009) PRAYER: Civil Revision Petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 26.08.2003 made in RCA Nos.89,90 and 88 of 2000 respectively on the file of the Court of 8th Small Causes Judge at Madras, which confirmed the judgment and decree dated 30.08.1999 made in RCOP Nos.2848, 2849 and 2846 of 1992 respectively on the file of the Court of the 12th Small Causes Judge (Rent Controller) at Madras. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.C.Ravichandran for Mr.R.N.Kothandaraman For R2 to R12 : Mrs.Thamizhselvi for M/s.Devadoss Associates C OM M O N O R D E R Inveighing the common order dated 26.08.2003 passed in RCA Nos.89,90 and 88 of 2000 respectively by the learned 8th Small Causes Judge at Madras, confirming the common order dated 30.08.1999 passed in RCOP Nos.2848, 2849 and 2846 of 1992 respectively by the learned 12th Small Causes Judge at Madras, these civil revision petitions are focussed by the tenants. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these three revisions would run thus: The respondents herein filed as many as three RCOPs invoking Sections 10(2)(1) and Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act [amended Act 23 of 1973] (in short 'the Act') on the ground that there was willful default in payment of rent and that the demised premises is required for demolition and reconstruction. The matters were contested and common enquiry was conducted. Ultimately the Rent Controller ordered eviction, as against which appeals were filed for nothing but to be dismissed by the appellate authority. Being aggrieved by and dissatisfied with the orders of both the Courts below, these revisions have been filed on various grounds. 4. The learned counsel for the tenants placing reliance on the grounds of revision, would advance his arguments, the gist and kernel of them would run thus: (a) Absolutely there is no iota or shred, shard or molecular extent of evidence to show that the tenants committed willful default. Every default will not amount to willful default. (b) Despite the tenants demanded for the production of the copy of the sale deed evidencing the alleged transfer of ownership of the demised premises in favour of the present landlord, there was no response and in such a case, the question of willful default would not arise. https://hcservices.ecourts.gov.in/hcservices/ (c) The tenants never resorted to Section 8(5) of the Act for the reason that there was no clarity as to who was entitled to receive the rent. Neither Saraswathi Ammal the erstwhile landlord, nor the present landlord ever ventured to clarify it precisely. If at all the tenants resorted to Section 8 of the Act, then strict adherence to Section 8 of the Act would arise. (d) The cases relied on by the landlord are only to push the tenants within the mischief of willful default and they are not applicable to the facts and circumstances of the case for the reason that in the decided cases the tenants resorted to some other mode of payment not in accordance with Section 8(5) of the Act. Whereupon alone, the Courts held that non adherence to Section 8(5) of the Act was fatal, but here the facts and circumstances are entirely different. For more than two years and odd the present landlord was adamant in not producing the copy of the sale deed. Only after filing application under Order 11 Rule 3 of CPC, he did choose to produce before the Court the copy of the sale deed. Whereupon alone the Rent Controller was pleased to order deposit of the rent and consequently, the entire arrears of rent were paid without any demur and that would show the genuineness of the tenants and by no stretch of imagination, such non payment of rent during that period could be taken as willful default. (e) The law has not got water down to the extent that the landlord can simply file an application invoking Section 14(1)(b) of the Act and require the demised premises for his requirement of demolition and reconstruction. Still the law is to the effect that the landlord should plead about the dilapidated nature of the building. (f) The only point in favour of the landlord is that there may not be any express proof that immediate demolition is required, but still the requirement on the part of the landlord is that he should plead specifically about the dilapidated nature of the building and also his requirement for demolishing the same and reconstructing a new one in that place. But in this case, the pleading was to the effect that the building required immediate demolition. Even though in the litigative process itself nearly two decades have elapsed, the building did not get collapsed and that itself is indicative of the fact that the intention of the landlord in requiring the premises for demolition and reconstruction is not genuine and bona fide. (g) The undertaking given by the deceased landlord got expired and subsequently, the legal representatives failed to file a new undertaking. (h) The financial wherewithal of the legal representatives of the deceased landlord also has not been proved before the Court. https://hcservices.ecourts.gov.in/hcservices/ Hence, the ingredients of Section 14(1)(b) of the Act were not established before the Court. (i) Both the Courts below fell into error in not taking into account the current law and applied the same in the fact situation, warranting interference by this Court in the present revisions. 5. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the tenants, the learned counsel for the landlord would advance her arguments, the warp and woof of them would run thus: (a) Candidly and categorically, the tenants admitted that they were put on notice about the change of ownership in favour of the deceased landlord. Even after that they went to the extent of demanding a copy of the sale deed, which they were not expected to do so and that too when the erstwhile landlord and the subsequent landlord namely the deceased landlord both informed the tenants about the said factum of the ownership which got changed in favour of the deceased landlord himself. (b) The law as laid down by the Hon'ble Supreme Court is so clear as clarity could be on the refusal of the rent to be received by the landlord, it is mandatory on the part of the tenants to resort to Section 8(5) of the Act and no more it is at the option of the tenants. (c) The argument as put forth on the side of the tenants, that if at all the tenants choose to resort to Section 8(5) of the Act, then strict compliance with Section 8(5) of the Act is required as otherwise, it is not required, is neither here nor there. (d) There is candid admission by all the tenants that the erstwhile landlord Saraswathi Ammal refused to receive the rent, whereupon as per the law laid down by the Hon'ble Apex Court, non adherence to Section 8(5) of the Act will lead to ultimate and irresistible conclusion that there was willful default on the part of the tenants in paying the rent. (e) The undertaking given by the deceased landlord would hold good in view of the current law. (f) The deceased landlord also marked exhibits to show his financial wherewithal. In fact, the legal representatives inherited the properties of the erstwhile landlord and in such a case, the question of once again the legal representatives establishing their financial wherewithal before the Rent Controller did not arise at all. As such, au fait with law and au courant with facts, both the Courts below correctly applied the law and decided the lis, warranting no interference of this Court in the revision. https://hcservices.ecourts.gov.in/hcservices/ 6. The points for consideration are as to: (1) Whether both the Courts below correctly applied the law relating to willful default in payment of rent by the tenants in the fact situation? (2) Whether both the Courts below applied the law relating to demolition and reconstruction in respect of this case? (3) Whether there is any perversity or illegality in the order passed by both the Courts below warranting interference under Section 25 of the Act? POINT NO.1 7. At the outset I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], certain excerpts from it would run thus: "4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act. 5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. https://hcservices.ecourts.gov.in/hcservices/ According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu 2. 6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) “8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a https://hcservices.ecourts.gov.in/hcservices/ payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.” 7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant. 8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the https://hcservices.ecourts.gov.in/hcservices/ ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment." (ii) (2005) 7 SCC 211 [Atma Ram v. Shakuntala Rani], an excerpt from it would run thus: "23. It was then faintly submitted before us that the High Court ought not to have exercised its revisional jurisdiction under Article 227 of the Constitution in view of the fact that the two courts below had concurrently found in favour of the appellant. The submission is misconceived. This is not a case where the High Court interfered with concurrent findings of fact. The High Court interfered because there was a serious error of law committed by the courts below and as a consequence thereof they failed to exercise jurisdiction vested in them by law. The exercise of revisional jurisdiction in a case of this nature cannot be faulted." A mere poring over and perusal of the those decisions which are governing the field would at once make the point clear that if there is refusal of rent by the landlord, then it is the bounden duty of the tenant to resort to Section 8(5) of the Act. The contention on the side of the tenants that whenever there is refusal of rent on the part of the landlord, the former is not bound to resort to Section 8(5) of the Act and if at all the tenants resort to Section 8 (5) of the Act, then strict adherence to it is absolutely necessary. Such an argument as put forth on the side of the tenants fail to carry conviction with this Court. Nowhere it is stated that at the option of the tenant Section 8(5) of Act could be invoked. If the contention on the side of the tenants is accepted, then it would amount to giving carte blanche to the tenants either to resort to Section 8(5) of the Act or not. The Hon'ble Apex Court in the aforesaid two decisions clearly pointed out that if there is refusal to receive rent on the part of the landlord, then it is mandatory on the part of the tenants to resort to Section 8(5) of the Act. 8. At this juncture, I recollect and call up the maxim: Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud – When anything is prohibited, everything by which it is reached is prohibited also. That which cannot be done directly shall not be done indirectly. https://hcservices.ecourts.gov.in/hcservices/ The law clearly envisages that there should not be any default on the part of the tenant in paying the rent. The law got developed that whatever be the proceedings initiated by the tenants or as against the tenants, there should not be any arrears of rent. When such is the mandate of the law, it is quite clear that the tenants cannot be heard to contend that they could either resort to Section 8(5) of the Act or not. In fact, the learned counsel for the tenants cited the Division Bench judgment of this Court reported in 1989 (1) LW 155 [Durgai Ammal v. R.T.Mani] , certain excerpts from it would run thus: "33. Now the question is whether the respondent is liable to be evicted for non-payment of rent. As stated above, according to the petitioner, the rent was Rs.350 per month. The respondent has denied that at any time she paid Rs.350 as rent and as a tenant under Radhakrishnan she was paying Rs.15 per month. Apart from the interested oral testimony of the petitioner P.W.1, there is absolutely nothing to show that the rent was Rs.350 per month. The petitioner has not examined any of his predecessors to speak to the quantum of rent. Not a scrap of paper had been filed by him in this regard. In this position it is rather impossible to believe that the rent was Rs.350 per month as alleged by the petitioners. It is the definite case of the respondent that she was paying only Rs.15 to Radhakrishnan. In fact it appears from Ex.R3 in H.R.C.3006 of 1978, money order coupon that the respondent sent a sum of Rs.90 as six months rent. That has been refused by Radhakrishnan. This will give at least some credence to the respondent's case that the rent was Rs.15. In this position of the evidence the case of the respondent is more probable than that of the petitioner. The appellate authority has also held that the agreed rent is Rs.15. Hence we have to proceed with the matter on the basis that the rent payable by the respondent was Rs.15 per month. 34. According to the petitioner, the respondent did not pay any rent to him. But without any basis whatsoever, informing theat he has purchased the premises, he demanded rent at Rs.350 per month. The respondent has requested in her reply letter the petitioner to enable her by sending copies of documents to be satisfied that the petitioner is the present owner of the premises, but in disregard of her request the petitioner has straightaway filed the petition for eviction. Thus on a mere information that the petitioner purchased the premises he expected the respondent to pay the rent to him that too without any basis at the rate of Rs.350 per month, while the rent payable according to the respondent is Rs.15 per month. In these circumstances, non-payment of rent to the petitioner cannot be taken to be https://hcservices.ecourts.gov.in/hcservices/ wilful. .................................................. .......................... ............................................................ .................................. Section 8 provides that in case the landlord refuses to receive rent tendered by the tenant the tenant can call upon the landlrod to name a bank where she can deposit it and if he fails to do so the tenant can sent it by money order and if even that money order is not received, the tenant can deposit the rent before the Rent Controller. But it is nowhere stated that if the tenant does not do so it will amount to wilful default. When a landlord refuses to receive the rent sent by the tenant it is his fault. He cannot subsequently say that the tenant has not exercised his right given under S.8, and, therefore, he must be taken to have committed wilful default. Similarly, if the tenant has not deposited the rent before the Rent Controller in case of bona fide doubt as to the person who is entitled to receive the rent and the person concerned does not help to remove the doubt of the tenant, the tenant cannot be said to have committed wilful default in payment of rent. Therefore, we find that the finding of the Appellate Authority that the tenant committed wilful default in payment of rent is wrong and hence that finding has to be set aside." 9. The learned counsel for the landlord would correctly and convincingly, explain and expound the dictum as found laid down in the cited Division Bench judgment by pointing out that the facts and circumstances involved in that case were entirely different from the one involved in these cases. Further more, the subsequent categorical precedents emanated from the Hon'ble Apex Court would be to the effect that when there is refusal to receive the rent by the landlord, then the tenant is duty bound to resort to Section 8(5) of the Act and it cannot be left at the option or whims and fancies of the tenant. As such, I would like to agree with the submission made by the learned counsel for the landlord. Here in these cases the tenants on coming to know of the refusal of the rent by the erstwhile landlord should have taken steps to file application