1. The landlord is the petitioner in these civil revision petitions. The premises bearing door No. 34, Ponnappa Mudali St., Madras 7 belongs to him. One Duraika nu, the husband of the respondent in these civil revision petitions, was originally a tenant in occupation of the premises and after his death, the respondent became a tenant on a monthly rental of Rs. 47.50, the tenancy being according to the English calendar month from the 1st to the end of every month. The landlord has a daughter and she is living in a rented premises in Mannadi with her husband. Stating that she had been asked to vacate the premises in her occupation in a month's time and claiming that the landlord or his daughter does not occupy any other building of their own and that the landlord bona fide required the premises in the occupation of the tenant for his daughter's occupation, the landlord filed H.R.C 3042 of 1980 before the Rent Controller (XIV Judge, Court of Small Cause,). Madras, under S. 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Tamil Nadu Act 23 of 1973 (hereinafter referred to as the ‘Act’).

2. The tenant, while accepting the tenancy disputed the bona fide requirement of the landlord for occupation by his daughter and further put forward the plea that the landlord was not living in a rented premises, but in his own house at Arasappa Mudali St., Madras 7, and that would disentitle him from maintaining the application for eviction.

3. The landlord also filed H.R.C 3040 of 1980 before the Rent Controller (XIV Judge, Court of Small Causes), Madras, under S. 10(2)(i) of the Act praying for an order of eviction against the tenant on the ground that she was irregular in the payment of rents and was in arrears from 1st August, 1979 till 30th June, 1980 at the rate of Rs. 47-50 and that such non-payment amounted to wilful default in payment of rents.

4. In the counter filed in that application, the tenant, while admitting the tenancy, stated that the rents had been regularly paid and that there were no arrears of rent. The wilful default attributed to her was also denied. In addition, the tenant also stated that certain repairs to the premises had been effected by her at her expense and a portion of the rents had been spent towards that. The further case of the tenant was that property tax dues to the Corporation of Madras payable by the landlord remained unpaid in respect of which a distraint notice was issued, that the tenant was constrained to remit the taxes from the second half year of 1975—1976 to the second half year of 1978—1979 and that having regard to the payment of the property tax, there was no question of any default in the payment of rents, much less wilful default.

5. Since the premises in respect of which an order of eviction was sought was the same and the parties were the same, though the grounds on which an order of eviction was sought were different, H.R.C 3040 and 3042 of 1980 were tried together. On behalf of the landlord, Exs. P1 to P8 were marked and the landlord was examined as P.w 1, while, on behalf of the tenant, Exs. R1 to R12 were relied upon and the tenant and her son were examined as R.W 1 and 2. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller was of the view that the tenant had committed wilful default in the payment of rents and that the requirement of the landlord under S. 10(3)(a)(i) of the Act on behalf of his daughter was not bona fide. In this view, in H.R.C 3040 of 1980, an order for eviction was passed, while H.R.C 3042 of 1980 was dismissed. Aggrieved by the dismissal of H.R.C 3042 of 1980, the landlord preferred an appeal in H.R.A 1117 of 1981 while the tenant, aggrieved by the order of eviction passed in H.R.C 3040 of 1980 preferred an appeal in H.R.A 1020 of 1981 before the Appellate Authority (III Judge, Court of Small Causes), Madras. The Appellate Authority disposed of the appeals by a common judgment. Dealing with H.R.A 1117 of 1981, the Appellate Authority took the view that though it may be that the son-in-law of the landlord was a tenant in another premises, yet, the non examination of the daughter for whose use the premises was stated to be required by the landlord would be fatal to the claim of bona fide requirement on her behalf. Considering the question of wilful default, the Appellate Authority found that owing to the failure of the landlord to pay the taxes to the Corporation of Madras and Tamil Nadu Water Supply and Drainage Board, the tenant was obliged to pay those taxes and, therefore, the conclusion of the Rent Controller that the tenant had committed wilful default in the payment of rents could not be sustained. On these conclusions, H.R.A 1117 of 1981 was dismissed, while H.R.A 1020 of 1981 was allowed, with the result that the application for eviction filed by the landlord in H.R.C 3040 of 1980 stood dismissed. It is against this order that the landlord has preferred the above civil revision petitions.

6. It will be convenient first to deal with C.R.P 3941 of 1982, arising out of H.R.C 3042 of 1980, filed by the landlord under S. 10(3)(a)(i) of the Act. The daughter of the landlord is married to one Thirugnanam. Ex. P5 series are the rent receipts issued in favour of. Thirugnanam, the son-in-law of the petitioner. Those receipts show that Thirugnanam was a tenant of the premises bearing door No. 51, S.P Koil Street. Madras-1 in 1976. Subsequently, he would appear to have moved on to premises bearing door No. 117, S.P Koil St., Madras 1, as shown by Ex. P5 series. The landlord examined as P.W 1, would no doubt say that his daughter is living in a rented house and that he would like to secure the premises in the occupation of the tenant for her use. The landlord has stated in the application for eviction that his daughter has been threatened with eviction in a month's time. No material has been placed before the authorities below to establish this. Apart from this, the best person to speak to the requirements for her own use would be the daughter of the landlord and she has not been examined. Above all, there is a fundamental and formidable objection to the maintainability of the application for eviction filed under S. 10(3)(a)(i) of the Act. Under that section, the landlord can apply to the Rent Controller for an order directing the tenant to put the landlord in possession of the residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned. The daughter of the landlord, though married, would undoubtedly be a member of his family and the building in question is a residential one. The daughter of the landlord is not occupying a residential building of her own in the city of Madras. Therefore, one part of S. 10(3)(a)(i) of the Act is satisfied. But the other part of the section is that the landlord or any member of his family should not be occupying a residential building of his own in the city, town or village concerned. In this case, the landlord examined as P.W 1, admitted that he resides in door No. 13, Arasappa Mudali St., Madras 7, and that it belongs to him by virtue of a partition. He would also admit that his wife, another daughter and himself reside there. From the aforesaid evidence of P.W 1 it is obvious that the landlord is in occupation of a residential building of his own in the city of Madras. Thus, the latter part of S. 10(3)(a)(1) of the Act is admittedly not satisfied in this case by the landlord, as even on his own showing, the landlord is in occupation of a residential building of his own in the city of Madras. It the landlord is desirious of living with his married daughter and son-in-law, then he can do so in his own premises at door No. 13, Arasappa Mudali St, Madras 7. The circumstance that the acccommodation available in that premises may not be adequate or sufficient is certainly not a ground under the Act to direct the eviction of the tenant in occupation in the absence of the fulfilment of the requirements of S. 10(3)(a)(a)(i) of the Act.

7. However, the learned counsel for the landlord relied upon Sivaprakasam and others v. K.M Sheriff . 1974 T.L.N.J 195. and J.N. Gulamali v. Howrah Casting Co. . 1978-1-M.L.J 218=91 L.W 133, in support of his contention that the landlord is entitled to take advantage of S. 10(3)(a)(i) of the Act. The first decision relied on by the learned counsel for the landlord dealt with the question whether co-owners as an entity could initiate an action for eviction either for the benefit of all of them or one amougst them. That decision did not lay down that even if the landlord was in occupation of a residential building of his own in the city, yet, he could recover another residential building on the ground that he required it for the occupation of a member of his family. The other decision relied on by the learned counsel for the landlord does not also assist him, for in that case, S. 10(3)(a)(i) of the Act relating to non-residential building was held to apply in respect of two different businesses, one of which was carried on in a portion of the building owned by the landlord and the other was carried on in a different tenanted premises. Such is not the situation in this case and the interpretation put upon S. 10(3)(a)(ii) of the Act, particularly on the words ‘for purposes of a business’ would not be applicable to S. 10(3)(a)(i) of the Act, where occupation by the landlord of a residential building of his own is sufficient to dis-qualify him from claiming another residential building in the occupation of a tenant. On this ground alone, the dismissal of H.R.C 3042 of 1980 and the confirmation thereof in H.R.A 1117 of 1981 have to be upheld.

8. The learned counsel for the landlord next contended that the tenant bad withheld the payment of rents for the period of 11 months from 1st August, 1979 to 30th June, 1980 and that such non-payment amounted to wilful default in the payment of rents meriting the passing of an order for eviction against the tenant. Attention in this connection was also drawn to the circumstance that the tenant had not brought to the notice of the landlord the service of a notice under R. 29 of Schedule IV to the Madras City Muncipal Corporation Act and that if the landlord had been informed, then the taxes would have been paid by him and therefore, the tenant cannot take advantage of the so-called payment of the property fax and water charges to escape from the consequences of a wilful default in the payment of rents. On the other band, the learned counsel for the tenant contended that the landlord was never in the habit of making payments towards property tax or water charges and that the tenant, as an occupier, was obliged to meet those demands on behalf of the landlord and therefore, any payment made by the tenant in that regard was liable to be recovered from the owner and could also be deducted from the rent in accordance with S. 375 of the Madras City Municipal Corporation Act. Reliance in this connesction was placed by the learned counsel for the tenant on the decisions in Rupeswari Debi… v. Lokenath Hosiery Mills…, Basant Lal v. Boora Ram, and N.S Ramamoorthi v. N.S Laxmana Achary . 1974-2-M.L.J S.N 3..

9. It is seen from Exs. R6 and R1, series, that the tenant had paid the rent regularly in 1978 and upto July, 1979. This is also borne out by Ex. P6 receipt book produced by the landlord where the last receipt issued was towards the the payment of rent for July, 1979 on 12th August, 1979. From August, 1979 onwards, it is common ground that no rents were paid by the tenant. While the landlord would characterise such non-payment as wilful default, falling under S. 10(2)(i) of the Act, the tenant would justify such non-payment on the ground that amounts had been expended by her for carrying out repairs, payment of property tax, water tax, etc. With reference to carrying out of repairs by the tenant in connection with which the tenant claims to have spent certain amounts, there is absolutely no acceptable material at all. The rent for the month of August, 1979, should have been paid by the tenant on or before 30th Septmber, 1979. Admittedly, the rent was not paid. There is no explanation at all for such non-payment. The tenant had known her obligation to pay the rent every month to the landlord in a sum of Rs. 47-50 p. and as pointed out earlier, the tenant had been very regular in the payment of such rents in 1978 and upto July, 1979. There is no reason at all as to why the tenant did not pay the rent for the month of August, 1979.

10. The tenant would justify the non-payment of rents for the entire period from 1st August, 1979, to 30th June, 1980, on the ground that under Ex. R2, dated 12th October, 1979, a notice under R. 29 of Schedule IV to the Madras City Municipal Corporation Act had been issued and that led to the payment of the property tax by the tenant towards the arrears of such tax payable by the landlord and, therefore, there was no need to pay the rents to the landlord for that period. Ex. R2 bears the date 12th October, 1979. That notice could have been served on the tenant only on the day or a few days later. Even by the time Ex. R2 was served on the tenant the payment of rent for the month of August, 1979, had become overdue and as pointed out earlier, there was no justification at all for the non-payment of the rent for the month of August, 1979. The rent for September, 1979 should have been paid by the tenant before the end of October, 1979, and likewise for the subsequent months. Whether Ex. R2 would be any justification at all for the non-payment of the rents for the period in question may now be adverted to.

11. Ex. R2 purports to be the notice issued by the Corporation of Madras in respect of arrears of property tax payable by the landlord from the second half year of 1973—1974 to the first half year of 1976—1977. Ex. R3 series are the receipts relied upon by the tenant to show that pursuant to Ex. R2, she had paid all the arrears of tax payable by the landlord. The receipts do not support this case of the tenant. In Ex. R3, series, the first receipt is dated 15th October, 1979. That purports to be for the second half year of 1975—1976. There is no indication therein that the payment was made by the tenant. The second receipt is dated 6th December, 1979, and that purports to be a receipt for payment made by the tenant for the first half year of 1976—1977. The third receipt is dated 6th February, 1980, for the second half year of 1976—1977. The next two receipts are dated 9th April, 1980, and 16th April, 1980, in respect of the first and the second half year of 1977—1978 and the payment purports to have been made by Loganathan, son of the tenant. The sixth receipt is dated 7th June, 1980, for first half year 1978—1979 and that also is in the name of Loganathan. The last receipt in Ex. R3, series is dated 14th August, 1980, in respect of the second half year of 1978—1979. That receipt also shows that the payment was made by Loganathan R.W 2. Ex. R5, shows that an ordinary property tax demand for the second half year of 1980—1981 had been issued to the tenant and a payment of Rs. 60-80 p. had been made on 6th January, 1981. It is thus seen that excepting for the second half year of 1975—1976 and the first half year of 1976—1977, none of the payments relate to the period mentioned in Ex. R2. If the tenant had not made those payments, then it is obvious that the landlord alone should have paid the arrears of tax and it is his liability to the Corporation of Madras. The evidence also does not disclose that on any prior occasion, the landlord had directed the tenant to pay the property tax or other charges payable by him on the understanding that such payments, if made by the tenant, can be adjusted against the rents payable by her to the landlord. The Appellate Authority was of the view that even before the receipt of Ex. R. 2, the tenant was called upon orally by the tax collector to pay the arrears of tax due by the landlord. There is absolutely no evidence whatever that prior to the receipt of Ex. R2, the tenant was called upon to make the payments towards tax due by the landlord. In the absence, therefore, of any evidence that previously the landlord used to direct the tenant to pay the arrears of tax on the understanding that such payments could be adjusted from out of the rents payable by her to thi landlord, and in the absence of any demand prior to Ex. R2, it is obvious that it was the duty of the tenant, on receipt of Ex. R2 to have contacted the landlord and apprised him about the receipt of the notice under Ex. R2. Indeed, the tenant should have sought the permission of the landlord to make the payments on his behalf, as the evidence does not disclose any prior practice in that regard. Without doing so, the tenant claims that she had made the payments, without even informing the landlord. The son of the tenant examined as R.W 2 stated in his evidence that whenever a demand for tax is received, he used to show it to the landlord and that the landlord used to direct him to pay the tax and deduct the amount so paid towards rent. Not one such demand has been produced. R.W 2 would also say that he showed Ex. R2 when it was received from the Corporation of of Madras and that the landlord directed him to pay the arrears and deduct it from out of the rents payable by the tenant. If really the arrangement spoken to by R.W 2 was true, then the receipts for the payment of property tax for the second half year of 1973—1974, first and the second half year of 1974—1975 and the first half year of 1975—1976 should have been made available. But those receipts are not forthcoming and that would ultimately establish that the so-called arrangement by which the tenant was directed to pay the arrears of taxes as mentioned in Ex. R2, subject to the adjustment of such payment towards rent payable, is not true. Ex. R5 is the demand notice for the second half year of 1980—1981 and it is an ordinary notice of demand and has not been issued under R. 29 of Schedule IV to the Madras City Municipal Corporation Act. On receipt of such a notice, in the absence of any arragement regarding the payment of such taxes the tenant ought to have forwarded that to the landlord for payment. That was not so done. Even with reference to the payment of water charges, there was no distraint notice as such, as it is seen from Ex. R4 that it related to the first half year of 1980—1981, while the receipts forming part of Ex. R4 show that the payment had been made for the first and the second half year of 1979—1980. Similarly, Ex. R10 shows that a demand was issued for the second half year of 1980—1981 for Rs. 22, but there is no receipt to show any payment. Whatever applies to the demands made in respect of property tax would be equally applicable with reference to the demand for water charges also, as the evidence does not disclose that there was any prior arrangement come to between the parties regarding the payment of taxes by the tenant and the adjustment thereof from out of the rents payable by the tenant to the landlord. In the ordinary course of events, even if a demand notice for property tax or water tax had been received by the tenant it was the duty of the tenant to have brought it to the notice of the landlord and only thereafter the tenant should have acted in accordance with the directions given by the landlord or as a prudent occupier of the property, if she was driven to adopt that course. In this case, the evidence does not disclose that the tenant informed the landlord about the receipt of the demand notices and that there was a direction by the landlord that the tenant should pay the property and water taxes and adjust the same out of the rents. In the absence of any such direction or understanding, any payments made by the tenant would only be in the nature of a voluntary payment and would not in any manner bind the landlord nor would it give rise to any right in the tenant for an adjustment of those amounts against the rents payable. Considered in that light, the property and the water taxes claimed to have been paid by the tenant in this case would partake the character of only voluntary payments. It may be that the tenant can recover those amounts in accordance with S. 375 of the Madras City Municipal Corporation Act or by other modes, but that would not shield her from the consequences of non-payment of rents for nearly a period of 11 months without any justification at all. In as much as on the facts and in the circumstances of this case, the payments stated to have been made by the tenant have been held to be voluntary, those payments cannot be taken advantage of by the tenant and cannot be pleaded as an answer to the prayer for an order of eviction on the ground of wilful default.

12. The decision in Basant Lal v. Boora Ram, relied on by the learned counsel for the tenant arose under the provisions of the Transfer of Property Act, and cannot have any application to a tenancy governed by the provisions under the Act. Similarly, the decision in Rupeswari Debi… v. Lokenath Hosiery Mills…, would also be inapplicable as in that case it was held that there was an agreement that the landlord should pay the owner's as well as the occupier's share of taxes and the occupiers were compelled to pay the municipal taxes on behalf of the plaintiff, in which case such payment should be regarded as payment of rent. It was also further pointed out that if the payment was a voluntary payment, the position would be different. Earlier, on the facts and in the circumstances of this case, it has been found that the payments stated to have been made by the tenant were only voluntary payments and not compelled or forced payments in the sense that the tenant had no other option except to pay the arrears of property and water taxes payable by the landlord. The reliance upon the decision in N.S Ramamoorthy v. N.S Laxmana Achary, also does not assist the tenant. In that case, while recognising that the incurring of expenditure by the tenant for providing amenities and by payment of taxes would be an imprudent expenditure on the part of the tenant, ultimately the court took the view that technically unauthorised expenditure by tenants ought not to be encouraged, but that in that case, the expenditure was incurred for an amenity which was not provided by the landlord and which amenity was necessary for day to day living and, therefore, though the expenditure was an unauthorised one, the non-payment of the rent by the tenant could not be held to be as a result of supine indifference or conscious avoidance. The principle laid down in that decision is that an unauthorised expenditure by the tenant ought not to be encouraged. But since the expenditure in that case was incurred for provision of an amenity, that would mitigate the rigour of wilful nature of the default committed by the non-payment of the rents. The circumstances in this case are very different and that decision cannot, therefore, be pressed into service by the tenant. Thus on a careful consideration of all the facts and circumstances and the evidence, it is clearly established that the tenant, who knew very well her obligations to pay the rents at the rate of Rs. 47.50p, every month to the landlord and who had also been regularly paying such rents every month, did not pay the rents for the period in question as and when such rents fell due, but had made certain voluntary payments towards property and water taxes and had claimed to deduct those payments out of the rents payable by her. Such a claim was not at all in order and, therefore, the non-payment of the rents for the period in question was only as a result of conscious avoidance amounting to supine indifference and that would justify the passing of an order for eviction against the tenant under S. 10(2)(i) of the Act. Consequently C.R.P 3941 of 1982 is dismissed, while C.R.P 3992 of 1982 is allowed. There will be no order as to costs in both the civil revision petitions.

VCS.