IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.1259 of 2003 P.Sivachandran ... Petitioner/Respondent Vs. M.P.Purushotham ... Respondent/Petitioner Prayer: Petition filed under Section 25 of the Tamil Nadu Buildings (Lease & Rent) Control Act 18/60 as amended by act 23/73 of the Act against the order and decree dated 21.07.2003 in RCA.NO.1108 of 2002 by the 7th appellate judge, Court of small causes, Chennai, allowing the appeal and thereby setting aside the decree and order dated 4.10.2002 in RCOP.No.1148 of 2001 on the file of XIV Judge, Court of small causes, Chennai. For Petitioner : M/s.C.Rajan For Respondent : M/s.M.Bakthavatchalam O R D E R The Civil Revision Petitioner is the tenant/respondent before the learned Rent Controller and the Appellate Authority. 2.The revision petitioner/tenant has filed the present Civil Revision Petition before this Court aggrieved against the orders passed by the learned Appellate Authority viz., 7th Judge, Court of Small Causes (full in-charge), Chennai in R.C.A.No.1108 of 2002 dated 21.07.2003 in R.C.O.P.No.1148 of 2001. 3.The respondent/appellant/petitioner/landlord has filed R.C.O.P.No.1148 of 2001 on the file of learned Rent Controller viz., XIV Court of Small Causes, Chennai under Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent) Control Act 23 of 1973 for wilful default against the revision petitioner/respondent/tenant, praying for an order of eviction and to deliver vacant possession. 4.The learned Rent Controller viz., XIV Court of Small Causes, Chennai in R.C.O.P.No.1148 of 2001 on 04.02.2002 has held that the respondent/tenant has not committed wilful default and in that view, has dismissed the petition without costs. https://hcservices.ecourts.gov.in/hcservices/ 5.The respondent/appellant/petitioner/landlord aggrieved against the orders of the learned Rent Controller passed in R.C.O.P.No.1148 of 2001 dated 04.02.2002 has preferred R.C.A.No.1108 of 2002 before the learned Appellate Authority viz., 7th Judge, Court of Small Causes, Chennai and the learned Appellate Authority viz., 7th Judge, Court of Small Causes, Chennai in his order dated 21.07.2003 has allowed the appeal, granting two months time for eviction to the Civil Revision Petitioner/tenant. 6.According to the learned counsel for the revision petitioner/tenant, the learned Appellate Authority viz., 7th Judge, Court of Small Causes, Chennai has failed to note that the respondent/landlord/petitioner filed R.C.O.P.No.1148 of 2001 on the ground of wilful default in regard to the payment of the difference in agreed rent and the fair rent as per the order passed in R.C.A.No.607 of 1996 dated 29.06.2001 and stayed by Hon'ble High Court in C.R.P.No.285 of 2001 dated 27.03.2002 and admittedly when the stay was in force, the learned Appellate Authority erred in ordering eviction by enforcing the order of increase in Fair Rent in R.C.A.No.607 of 1996 dated 29.06.2001 and when the civil revision petitioner intended to file a revision as per the reply notice dated 12.07.2001, no Wilful Default will arise as per decision 1996(2) L.W. Page 849. 7.It is the further case of the revision petitioner/ tenant that the learned Appellate Authority has not taken into consideration the evidence of P.W.1 and R.W.1 and the admitted fact is that RCOP petition was filed by the tenant for deposit of rent under Section 8(5) of the TN Buildings (Lease and Rent) Control Act, 1960. A further plea is taken on the side of revision petitioner/tenant that the learned Appellate Authority erred in not taking into consideration the fact that the rent control petition was filed on 25.07.2001, though notice dated 05.07.2001 was issued claiming the difference in agreed rent and the fair rent, without waiting for two months time to expire, as per decision 2000 TLNJ Page 24 and therefore, the revision petitioner prays for allowing the revision petition. 8.The case of the respondent/appellant/petitioner/ landlord is that earlier he filed R.C.O.P.No.333 of 1994 on the file of XI Court of Small Causes, Chennai praying for the fixation of fair rent of Rs.2000/- per month as against the agreed monthly rent of Rs.500/- and in the said rent control proceedings, the monthly rent was fixed as Rs.1220.41 by the learned Rent Controller on 10.01.1996 and R.C.A.Nos.607 and 1556 of 1996 were preferred by both parties as against the orders passed by the learned Rent Controller in the said RCOP proceedings and in R.C.A.No.607 of 1996 filed by the respondent/landlord, the learned Appellate Authority re-fixed the fair rent at Rs.1453/- and dismissed the https://hcservices.ecourts.gov.in/hcservices/ R.C.A.No.1556 of 1996 preferred by the revision petitioner/tenant. 9.In pursuance of the orders passed in R.C.A.No.607 of 1996 in R.C.O.P.No.333 of 1994 dated 29.06.2001, the respondent/landlord/petitioner issued a notice dated 05.07.2001 to the revision petitioner/tenant claiming a sum of Rs.20,933/- in respect of the difference in rent for the period January 1994 and June 2001 and with a further request that the revision petitioner/tenant is to pay the revised fair rent of Rs.1453/- per month in future. However, the civil revision petitioner/tenant sent a reply on 17.07.2001 mentioning that the fair rent order has not reached finality and that the civil revision petition is to be filed against the orders passed in RCA. 10.The substance of the case of the respondent/landlord/petitioner is that the revision petitioner/tenant has withheld a sum of Rs.20,933/-, being the difference in rent (between the fair rent of Rs.1220.41 determined in R.C.O.P.No.333 of 1994 and the revised fair rent of Rs.1453/- fixed in R.C.A.No.607 of 1996) and therefore, inspite of the notice dated 05.07.2001 issued by the respondent/landlord, the revision petitioner/tenant has willfully and wantonly not paid the rental arrears and thereby committed wilful default. 11.Per contra, the stand of the revision petitioner/tenant is that R.C.O.P.No.1148 of 2001 is not maintainable in law because no cause of action has arisen in the matter in issue and that a suitable reply dated 17.07.2001 was issued by the revision petitioner/tenant to the lawyer notice dated 05.07.2001 issued by the respondent/landlord stating that the civil revision petition is to be filed by the revision petitioner/tenant and that the revision petitioner/tenant tendered the rent for July 2001 which was refused on 08.08.2001 and again on 10.08.2001, July 2001 rent was sent by cheque with a covering letter, which was returned along with a reply notice dated 13.08.2001 and once again the rent was sent by money order which was accepted but returned by a letter dated 24.08.2001 enclosing a pay order and pending correspondence the RCOP petition was filed on 25.07.2001 and that the agreed rent for the period from July 2001 and August 2001 was tendered in addition to the memo filed and therefore, there is no wilful default committed by the revision petitioner/tenant. 12.The learned counsel for the revision petitioner/tenant relied on the decision 1996 [2] L.W. 849, between J.VISALAKSHI V. T.B. SATHYANRAYANA, wherein it is held as follows: "Tamilnadu Buildings [Lease and Rent Control Act [18 of 1960], Ss.11[4] and 10[2][i]-Difference between agreed rent and fair rent held, is https://hcservices.ecourts.gov.in/hcservices/ arrears and payable when order fixing fair rent becomes final – Right of landlord to issue notice of 15 days from last day of that tenancy month demanding arrears, and failing compliance to institute proceedings under S.10[2][i] – Not necessary for landlord to go to civil Court to recover such arrears – 100 l.W. 708 and 709 TLNJ 270 overruled." 13.The learned counsel for the respondent/landlord/petitioner cited 1998-TNLJ 165, between M/S.PRAKASH PHARMACY, REP.BY ITS PARTNERS & OTHERS V. C.THIRUPURUSUNDARI AND ANOTHER wherein at page 167 it is held as follows: "...A reading of Sec.23[4] of the Act, it is clear that the decision of the appellate authority is final. However, an opportunity or right is granted to the aggrieved person to challenge the said order in the High Court. But the object in enacting Sec.23[4] of the Act is to give a finality at the appellate stage itself, otherwise, there is no necessity to enact Sec.23 [4] of the Act. If we view that finally would be reached after the Civil Revision Petition is disposed of as per section 25, then section 23[4] becomes redundant and unnecessary. Normally, the Court has to take a provision as it stands and has to construe the object behind it. The interpretation should be to give a meaning to it and not to discard it. It is also to be presumed that when a provision is included in an enactment, the Legislature has done it with a purpose or object. Only when we given an interpretation that a finality in the Rent Control proceedings is reached after the appeal stage, there will be a meaning to the Section." At page 168, it is held thus: "...It is no doubt true that the order passed by the Rent Controller would be final and conclusive, when the revisions authority passed the order. But, we should remember that there are also consequential remedies provided against the orders of the Tribunal and the courts. Therefore, the finality in its proper sense shall be only when the final Court of the Country or the Nation gives its verdict." https://hcservices.ecourts.gov.in/hcservices/ 14.The learned counsel for the respondent/landlord also relied on the decision 1999 [1] CTC 221 between T.ESWARA RAO V. N.E.ANSARI [DECD] AND SIX OTHERS wherein it is held thus: "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Sections 8 and 10[2][i]- Wilful default – Mere attempt to send rent by Money order without taking further steps to deposit rent into court under section 8 would amount to wilful default – Tenant is liable to be evicted. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] proviso – Purpose of incorporation – Purpose is to give opportunity to tenant whose default was found to be not wilful to pay rent within 15 days – Condition precedent for invoking proviso is that Rent Controller should come to conclusion that tenant's default was not wilful. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] – Deposit of rent on first date of hearing – Tenant did not pay rent for more than one year inspite of notice demanding rent – Landlord filing petition for eviction on ground of wilful default – Tenant depositing unpaid rent on first date of hearing and pleading that in view of this deposit, default cannot be construed as wilful – Plea of tenant negatived – Accepting such submission amounts to rewriting provisions of Enactment – Merely because tenant deposits arrears of rent on first date of hearing, it cannot be said that landlord cannot sustain petition for eviction if it is otherwise established that tenant committed wilful default in payment of rent – Such deposit has to be considered along with other factors to decide whether default is wilful or not." 15.For the proposition of wilful default, the learned counsel for the respondent/landlord pressed into service 1999 [III] CTC 199 between MAJESTICE LEATHERWARE REP.BY ITS PROPRIETOR S.M.MAHBOOB BASHA, CHENNAI-3 V. GOVINDA CHETTY wherein it is held as follows:- "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] – Wilful Default – Payment of monthly rent punctually is statutory obligation – Any default in payment of rent by due date makes tenant defaulter – Tenant pleading that non payment of rent for more than two years https://hcservices.ecourts.gov.in/hcservices/ was due to demand made by landlord for enhanced rent – No evidence for such plea – Tenant did not send rent by money order or initiate proceedings under Section 8[5] – Both authorities found that default was wilful – Concurrent findings by Authorities – No irregularity, illegality or impropriety in the order of authorities – Revisional Court upheld order of eviction on ground of wilful default. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] – Explanation Wilful Default – Notice demanding arrears of rent – Necessity of such notice to initiate proceedings for eviction on ground of wilful default – Issue of notice by landlord to tenant demanding arrears of rent before initiating eviction proceedings for wilful default is not mandatory or legal regiment – Issue of notice will only enable presumption of wilful default to be drawn against Tenant – Even where no notice was issued it is open to Rent Control Authorities to hold default as wilful taking into consideration conduct of tenant." He also relied on the decision reported in 2000 [II] CTC 577 between K.M.MUNEERUDDIN AND 4 OTHERS V. P.M.PUNNOOSE wherein it is observed as follows:- "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Sections 8[5] and 10[3] – Wilful Default – Money order sent by tenant refused by Landlord – Tenant should initiate proceedings under section 8[5] after calling up landlord to specify Bank in which rent could be deposited – Mere attempt to send rent by money order without taking steps to deposit would constitute wilful default – Tenant failed to deposit rent on first date of hearing and paid it after more than one year – Once tenant admits default he has to prove that it was not wilful. Rent Control Law – Wilful Default – Burden of proof – Once tenant admits default he has to prove that it was not wilful." 16.On the side of the respondent/landlord/petitioner, reliance was placed on the decision reported in 2001 [3] CTC 313 between M.K.MUKUNTHAN V. M.PASUPATHI wherein it is held as follows: "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] – Wilful default – https://hcservices.ecourts.gov.in/hcservices/ Tenant failing to pay rent immediately on inception of tenancy and committed default for 12 months – Landlord living in same building and yet tenant sent money order representing rent for 3 months with knowledge that landlord was away to attend funeral of his mother-in-law – Money order returned as addressee not found – Tenant sent notice and landlord did not send reply – Tenant failing to take any further steps – Tenant committed wilful default – Order of eviction sustained and confirmed. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 7 and 10[2][i] – Tenant paying an advance of Rs.3000 and agreed to pay monthly rent of Rs.300 and committed default in payment of rent for 12 months amounting to Rs.3600 – Even after adjusting advance of Rs.3000 tenant has not paid rent for two months – Ground for wilful default made out." 17.The learned counsel for the respondent/landlord drew the attention of this Court to the decision 2002 [1] CTC 631 between IRENE V. V.S.VENKATARAMAN AND ANOTHER wherein it is observed as follows: "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][ii][a] and [b] and 10[3] [c[ - Eviction sought by Trust on ground of unauthorised sub-letting, change of user and requirement of landlord for additional accommodation – First floor is in occupation of landlord – Ground floor is in occupation of tenant who is a foreigner – While tenant goes out of country, tenanted premises is under the care of representative of tenant, a care-taker, driver and watchman who occupy premises during absence of tenant from the country – Rent Controller and Appellate Authority held that premises in occupation of employees of tenant to look after tenancy premises when tenant is away in foreign country do not amount to sub-letting – Authorities also negative the plea of landlord regarding change of user since premises was used only for residential purposes – Requirement on ground of additional accommodation was held against landlord as premises in occupation of landlord was not proved or be inadequate insufficient for requirement of landlord – Concurrent findings of Rent Controller and Appellate Authority were set aside by High Court https://hcservices.ecourts.gov.in/hcservices/ in revision and order of eviction was passed against tenant – On appeal held that High Court was wrong in holding that occupation of tenanted premises by servants when tenant was away in foreign country amounted to sub-letting – Such occupation does not amount to sub-letting – High Court was wrong in shifting the burden of proof regarding change of user on to tenant – High Court without adverting to requirement of landlord for additional accommodation recorded a finding of comparative hardship in favour of landlord – Approach of High Court was casual and cursory – High Court re-appreciated evidence in revision – Approach adopted by High Court is perverse as no such findings could be arrived at in reversal of concurrent findings of authorities – Power of High Court in revision under Rent control Act is not as wide as power of appellate Court." He also cited 2002 [4] CTC 572 between E.PALANISAMY V. PALANISAMY [D] BY Lrs. AND OTHERS, wherein it is held thus: "Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Sections 8[2] and 8[5] – Deposit of rent into Court – Scope of provision – On refusal by landlord to accept rent, tenant is to call upon landlord by way of notice to specify name of Bank in which rent could be deposited by tenant to credit of landlord – If landlord specifies name of Bank to deposit rent there is obligation on part of tenant to make deposit of arrears of rent in account of landlord – If landlord does not specify name of Bank, tenant is required to send rent through money order – If landlord still refuses to accept rent, tenant is entitled to file application before Rent Controller seeking permission to deposit arrears of rent under Section 8[5]. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Sections 8[2] and 8[]5 – deposit of rent into Court without following procedure prescribed – Principle of Substantial compliance – Whether applicable – Whether such deposit of rent would negative plea of eviction of tenant on ground of wilful default – Mere refusal of landlord to receive rent cannot justify action of tenant in straightaway invoking section 8[5] of Act without following procedure contained in earlier sub-sections – Plea of substantial compliance was rejected – Tenancy legislation is https://hcservices.ecourts.gov.in/hcservices/ normally intended to benefit tenants – But benefits conferred on tenants can be enjoyed only on basis of strict compliance of statutory provisions – Equitable considerations have no place in such matters – Strict compliance of procedure by tenant is necessary – Omission to avail prescribed procedure disentitles tenant to plead that there was no wilful default on his part – Landlord is entitled to seek eviction of tenant on ground of wilful default in payment of rent. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, Section 10[2][i] – Wilful Default – Eviction on ground of wilful default – Mere refusal of landlord to receive rent cannot justify action of tenant in straightaway invoking section 8[5] of Act in filing application to deposit rent into Court without following procedure contained in section 8 of the said Act – Omission to avail prescribed procedure disentitles tenant to plead that there was no wilful default on his part – Landlord is entitled to seek eviction of tenant on ground of wilful default in payment of rent – Order of eviction passed by High Court confirmed in appeal." He also relied on yet another decision reported in 2004 [2] MLJ 407 between N.BORAIAH V. N.ESWARAN wherein it is held thus:- "When the landlord had complained, by issue of notice, as well as by filing a Rent Control Application, on the ground of wilful default, then the tenant ought to have deposited the rent forthwith, showing his bona fide. Here is a tenant, who has not cared to pay the amount, till a petition under section 11[4] of the Act was filed and only after two years or so, he had cleared the arrears of rent. This non-payment of rent, for more than two years, should be construed as wilful default and there cannot be any other nomenclature for this non-payment of rent." 18.P.W.1-Purushothaman, the respondent/landlord, in his evidence in cross-examination has admitted that since he refused to receive the rent, RCOP was filed for depositing the rent into Court by the tenant and that till date, the revision petitioner/tenant has paid the rent as per the order made by the lower Court and that the respondent/landlord has received the rent fixed by the lower Court till August 2002, from the tenant https://hcservices.ecourts.gov.in/hcservices/ and that he has received the rent till December 2002 by means of anti-dated cheque from the tenant. 19.R.W.1-Sivachandran, the revision petitioner/tenant, in his evidence has stated that he has filed the civil revision petition and obtained stay orders as per Ex.R.1 and that he sent Rs.1,220.41ps to the respondent/landlord in July, which was not received by the landlord and the returned cheque along with the covering letter, Ex.R.2 [series] and the respondent/landlord/petitioner received the rent sent through Money Order on 21.08.2001 and the amount received through money order was returned by the respondent/landlord as per Ex.R.4 and the cheques sent along with the letter were returned as per Ex.R.6 and after filing RCOP.No.67/2002, on the date of hearing of the petition, he has paid the rent due for July 2001 on 31.08.2001 and he has given anti-dated cheque to the landlord and therefore, there is no rent due and payable by him. 20.It is significant to point out that revision petitioner Sivachandran, R.W.1 in his cross-examination has specifically stated that after 29.06.2001 till obtaining stay orders in the CRP he has not made attempt to deposit the rent into Court and that the petition filed under section 8[5] of the Act is pending before the same Court. 21.It is evident from Ex.R.1, the Hon'ble High Court's order passed in CMP.No.3216/2002 in CRP.No.285/2002 that the revision petitioner/tenant has obtained an order of interim stay dated 27.03.2002 subject to the condition that he pays the rent enhanced by the Rent Controller during the pendancy of this revision, failing which the stay will get automatically vacated. 22.It is not out of place to make a mention that the Hon'ble High Court in CMP.No.14029/2003 in CRP.[NPD} No/.1259/2003 has passed orders on 31.12.2003 making the order of interim stay granted dated 18.09.2003 as absolute and dismissed the VCMP.No.20301/2003. 23.It is useful to refer that the Hon'ble High Court has passed orders on 12.08.2005 in CRP[NPD} Nos.285 and 477 of 2002 allowing the said civil revision petitions by remitting the matters to the concerned Rent Controller for disposal and that the Rent Controller was directed to appoint a Commissioner to be assisted by a competent Surveyor from the Survey Department and another qualified Engineer, so as to measure the demised premises and ascertain the physical features, site value, building value etc., as directed by the Rent Controller and submit a report within three months etc. https://hcservices.ecourts.gov.in/hcservices/ 24.If the landlord has issued a notice to the tenant and within the notice period, without waiting for two months preferred a petition under section 10[2][i] of the Act as per the decision reported in 1994 [1] MLJ 516 between KARRA KONDAMMA V. KARRA NAGAMMA. 25.In AIR 2002 SC 1830 between RAJA MUTHUKONE [D] V. T.GOPALASAMI & ANOTHER "once the landlord gives notice to the tenant without claiming arrears or rent, he should wait for two months and cannot initiate proceedings, etc." In 1995 TNLJ 270 between NELSON AND ANOTHER V. P.RANGANATHA MUDALIAR, it is held that "failure to pay the difference between the contractual rent and fair rent fixed by the Court would not amount to wilful default. It cannot be said that the tenant is a defaulter for having not paid the excess amount pursuant to the order of the Court. It is not an arrear under section 10[2] of the Act. The Act does not make any provision with regard to consequences of non-payment of the difference between the fair rent and the agreed rent where fair rent is fixed at a higher figure than the agreed rent and the only remedy available to the landlord will therefore be to file a suit. Consequently, further the provision under section 11[4] cannot be attracted also. Being a forum bound by a special statute the jurisdiction of the Rent Control Court is only to order eviction on the specific grounds mentioned therein. 26.Moreover, section 8 of the Tamil Nadu Buildings [Lease and Rent Control] Act, 1960 is only an enabling provision and not a mandatory requirement in the considered opinion of this