Muktha Bai And Ors. v. P. Adinarayana Chetty

1. This revision petition is directed against the Judgment in R.C.A. No. 139 of 1982 on the file of the appellate authority (III Judge, Court of Small Causes). Madras. The petitioners are the landlords and the respondent is the tenant.

2. The petitioners/landlords are the owners of the petition mentioned building and they filed a petition for eviction against the respondent/tenant under Section 10(2)(i), 10(2)(ii)(a) and 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent Control Act) on the ground that the respondent has committed wilful default in the payment of rent 1.6.1978 onwards and that he had subleased the premises and ceased to occupy the same for a continuous period of 18 months without sufficient cause. The respondent resisted the application contending that one Dathuram Devkar, who was the original landlord, was collecting the rent through his agents, that after his death, his agents were collecting the rent upto May, 1978 without revealing the fact that the said Dathuram Devkar was dead and that When he came to know about his death in June, 1978, he was not able to ascertain the legal heirs who are entitled to receive rents and therefore he did not pay the rents. He further contended that when the petition for eviction was filed, he remitted the entire amount immediately into the Court and therefore, he has not committed any wilful default in the payment of rents. He denied the allegations of the sublease of the premises and also the non-occupation of the premises continuously for a period of 18 months.

3. The learned Rent Controller, accepted the contentions put forward by the tenant and dismissed the eviction/petition. As against the said order, the petitioners preferred an appeal in R.C.A. No. 139 of 1982. The appellate authority agreed with the finding of the learned Rent Controller, and dismissed the appeal. Aggrieved against the said judgment, the present revision petition has been filed.

4. Mr.S.V. Jayaraman, learned Counsel appearing for the petitioners contended that the legal representatives of the deceased landlord Dathuram Devkar have been residing in the second floor of the same building occupied by the respondent as tenant and, therefore, the contention of the respondent that he did not know the legal representatives cannot be accepted. He further submitted that two registered notices were sent to the tenant under Ex.P.4, and Ex.P.6, but they were returned with an endorsement that the door was always locked." He pointed out that when the respondent himself has admitted that some of the legal representatives ware residing in the same building and he was paying rents to them earlier, the respondent cannot be heard to say that he was not aware of the details of the legal representatives of the deceased landlord. According to him the findings of the authorities below are perverse in nature and, therefore, this Court has got ample jurisdiction under Section 25 of the Act and he relied on the decision of the Supreme Court report in Vinod Kumar Arora v. Surjit Kaur. in support of his contentions.

5. In answer to the said contentions, Mr. A. Chenchuram Reddy learned Counsel appearing for the respondent submitted that admittedly the respondent was regular in payment of the rents earlier to June, 1978, that he was not able to ascertain the details of the legal representatives of the deceased landlord and, that, therefore, he was not in a position to pay rents to any one. Further he submitted that nobody demanded rent from the respondent and as soon as the eviction petition was filed, the entire rent was deposited by him into court. He, therefore, submitted that the respondent has not committed any wilful default in the payment of rents.

6. It is no doubt true that the learned Rent Controller as well as the appellate authority have concurrently held that the respondent has not committed wilful default in payment of rents. Further it was held that the respondent has not ceased to occupy the premises as contended by the petitioners. In so far as the alleged sub-lease of the premises and non-occupation of the same continuously for a period of 18 months is concerned, I find that the materials placed before the authorities below are not sufficient to hold that the respondent has sublet the building of ceased to occupy the same. Therefore, the findings of the authorities below on this aspect do not call for any interference in this revision and accordingly, they are confirmed. In so far as the question relating to wilful default in the payment of rent is concerned, I find that the authorities below have committed a serious error in appreciating the evidence let in this case.

7. It is the admitted case of the respondent that he did not pay rent from 1-6-1978 till the date of the eviction petition. The only defence put forth by the respondent is that after the death of the original landlord Dathuram Devkar, he was not aware of the details of his legal representative and nobody made any demand for payment of rents. A strong reliance is placed on the fact that the entire arrears of rent were paid after the petition for eviction was filed by the petitioners. The authorities have accepted the said explanation and dismissed the petition for eviction holding that the respondent has not committed any wilful default. I do not know how such a finding was arrived at on the evidence let in by the parties. Several admissions made by the respondent would go to show that he was not justified in not paying the rents for such a long time. In his evidence, the respondent has categorically admitted as follows:

The above admission made by the respondent would clearly establish the fact that the respondent knew that the original landlord died and that his family members were residing in the upstairs portion of the same building. He also admits that P.Ws. 1 and 2, who are the sons of the original landlord, used to collect rents from him before the death of the landlord. He says that he came to know about his death through one of his legal representatives. But inspite of that, he never cared to go to the upstairs and ascertain the names of the legal representatives of the deceased landlord. It is also admitted that there are other tenants in the same building belonging to the same landlord. The respondent did not make any attempt to ascertain the names of the legal representatives from them also. However, the respondent has chosen to say now that he was not aware that P.Ws. 1 and 2 are the sons of the landlord. It is too much to say that the respondent was not in a position to know the relationship of P.Ws. 1 and 2, with the deceased landlord. I do not know why the respondent has not cared to ascertain the simple fact from the inmates of the landlord's family or from other tenants. The conduct of the tenant shows reckless negligence in paying rents. If he has really made some bona fide attempts to ascertain the names of the legal representatives and could not succeed in the same, then at least one can say that the respondent was not in a position to pay rents to the legal representatives of the deceased landlord. But in this case, I find that the respondent did not raise his little finger to ascertain the names of the legal representatives from any one. This conduct of the respondent would clearly establish that there was absolutely no bona fides in not paying rents in time. Apart from that it is seen that two registered notices under Ex.P.4 and Ex.P.6 were sent to the respondent. But both of them were returned with an endorsement "always door locked". Even thereafter the respondent did not take any steps to pay rents. The eviction petition was filed on 7.12.1979 and the first hearing was on 29.1.1980. The Vakalat was filed on behalf of the respondent on 11.3.1980 and the rents were deposited only on 27.3.1980. Even here, I find that the arrears of rent were not paid immediately after service of notice.

8. The authorities below proceeded on the basis that the respondent was justified in entertaining some doubt as to the person to whom rent has to be paid after the death of the landlord. After having stated that one of the co-sharer is entitled to collect rent from the tenant, they have held that the respondent was justified in entertaining such a doubt. The authorities below have totally failed to consider the evidence in a proper perspective and they have rendered a finding on mere surmises. In view of the categorical admissions made by the tenant above referred to, there is no room for saying that the respondent was justified in not paying the rent. Even if there was any lingering doubt about the details of the legal representatives of the landlord, the respondent ought to have deposited the entire rents before the Rent Controller as provided under the Act. Elaborate provision is made under Section 8 of the Rent Control Act for payment of rent in cases where a landlord refuses to accept or avoides the receipt of any rent. In cases where the address of the land lord or his authorised agent is not known to the tenant, he may deposit the rent before the Rent Controller under Section 9(1) of the Act. Again, there is a provision under Section 9(3) of the Act enabling the tenant to deposit rents before the prescribed authority where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent. When the statute has made such specific provisions, it is not open to the tenant to commit default for a long time solely on the ground that he was not aware of the names of the legal representatives of his landlord. Though there cannot be any hard and fast rule in such matters, I find that in this case the respondent was totally indifferent in the payment of rent and the failure to pay rent was deliberate. It is no doubt true that there is a clear difference in law between default and wilful default and that every default cannot be treated in law as wilful default. A wilful default is a default accompanied by a particular state of mind which cannot be directly proved but has to be inferred from the entire complex set of circumstances, and that to hold that a tenant is wilful in payment of arrears of rent, it must be proved beyond doubt that he had exhibited supine indifference and callousness as held by this Court in a number of decisions. In this case, I find that there was a conscious failure of the tenant to payments without any justification and, therefore, there is no justification for holding that there was no element of wilfulness. The term 'wilful default' is a meaningful phraseology used by the statute with a definite purpose. The courts have always taken the view that the mere non-payment of rent for a particular period may not amount to wilful default, provided the explanation offered by the tenant in such cases is acceptable by a reasonable person. The fact that the respondent has deposited the arrears of rent after the eviction petition was filed cannot come to his rescue, since the petition was filed on the cause of action based on wilful default and, therefore, by the subsequent deposit of rent, the petitioners cannot be nonsuited on that ground. If such a view is taken then the very purpose of the provision found in the Act for eviction of tenants on the ground of wilful default will be defeated. The tenants are entitled to protection under the Act so long as they performed their obligations as tenants. When the tenant in this case has committed default in payment of rents for nearly 18 months, it is difficult to accept his contention that the default is not wilful. This Court in Nagarathinam Pillai v. Mahadevier held that the fact that the tenant deposited the rent subsequently and quite early after the institutor of the eviction proceedings, may serve to extenuate his default in the sense that he might be granted a reasonable time for vacating the premises but it is not a ground that the law can rcognise for holding that a tenant, who deposits such rent, is not guilty of wilful default. For all these reasons, I find that the respondent has committed wilful default in payment of the rents and, therefore, he is liable to be a victim. Though the authorities below have rendered a concurrent finding on this question, I find that they have not exercised their jurisdiction in accordance with law and the decision of the authorities below on the proved facts shows that the conclusion arrived at did not follow. In Vinod Kumar v. Suriji Kumar , the Supreme Court has held as follows:

The High Court is fully justified in rejecting the finding of the Rent Controller and the Appellate Authority, even though it is a finding of fact, when both the Authorities have based their findings on conjectures and surmises and they have lost sight of relevant pieces of evidence which have not been controverted. The rule that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court is not entitled to disregard those findings and come to a different conclusion of it own would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions.

9. In the result, this Civil revision petition is allowed the orders of the authorities below are set aside and the eviction petition will stand allowed as prayed for. Considering the hardship of the respondent in securing an alternative accommodation, the respondent will have nine months' time from this date to vacate the premises and put the petitioners in possession of the same, for which learned Counsel for the petitioners has no objection. There will be no order as to costs.

10. The Respondent is given time on condition that he should file an affidavit, undertaking to evict the premises and put the landlords in possession within stipulated time. Such an affidavit should be filed within four weeks from this date, failing which the petitioner will be entitled to execute the order of eviction.