1. C.R.P. No. 3948 of 1986 is directed against the order passed in R.C. A.No. 128 of 1986 which in turn arises out of the order passed in R.C.O.P. No. 397 of 1983. C.R.P. No. 3949 of 1986 is directed against the order passed in R.C.A. No. l29 of 1986 which in turn arises out of the order passed in R.CO.P. No. 2738 of 1983. The petitioner and the respondents in both the revision petitions are the same and they are respectively being the tenant and the landlady.
2. The petition(s) premises is situated at 178, Peters Road, Royapettah, Madras-14. The monthly rent agreed was Rs. 300 exclusive of electricity charges. According to the landlady, the tenant committed wilful default in payment of rent from April, 1981 to November, 1981, viz., for a period of 8 months, amounting to Rs. 2,400. Hence the landlady filed R.C.O.P.No.115 of 1982 under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973, hereinafter referred to as the Act. During the pendency of the above rent control proceeding, the landlady filed M.P. No. 96 of 1982, since the tenant failed to pay rent for the months from April, 1981 to January, 1982, amounting to Rs. 3,000. The tenant was directed to deposit Rs. 2,400 before the court on or before 18.6.1982, but the tenant did not do so. Hence on 19.6.1982, the Rent Controller ordered eviction. As against the order passed in M.P. No. 96 of 1982 in R.C.O.P. No. 115 of 1982, the tenant filed R.C.A. Nos. 1408 and 1409 of 1982. In the said appeals the tenant deposited Rs. 2,400 in August, 1982. The landlady filed M.P. No. 1342 of 1982 since the tenant failed to pay rent for the period from December, 1981 to July, 1982, viz., 8 months, amounting to Rs. 2,400. As per the order of the court the tenant deposited Rs. 1,800 and thereafter the tenant did not pay any amount to the landlady. According to the landlady, the tenant is liable to pay rent from April, 1981 to December, 1982, viz. 21 months, amounting to Rs. 6,300. Even deducting the deposits made, viz. Rs. 1,800 and Rs. 2,400, the tenant has to pay the balance amount of Rs. 2,100. Since the tenant defaulted in payment of rent for the months from June, 1982 to November, 1982, R.G.O.P. No. 397 of 1983 was filed under Section 10(2)(i) of the Act. Even thereafter the tenant did not pay any rent and hence the landlady filed R.C.O.P. No. 2738 of 1983 for eviction and the default period in the latter case pertains to the period from December, 1982 to May, 1983.
3. In the counter statement, the tenant submitted that the landlady is not the absolute owner of the petition premises. The son of the landlady sent a notice dated 15.4.1980 claiming 3/10 share in the property as well as in the rent payable in respect of the property. The tenant replied to the said notice stating that since there is a bona fide dispute with regard to the title over the petition premises between the landlady and her son, she has not been able to pay rent to any one of them. The tenant also submitted that since the earlier petition, R.C.O.P. No. 115 of 1982 was pending, the subsequent petitions on the same ground of alleged non-payment of rent are not maintainable. Further the amounts of Rs. 2,400 and Rs. 1,800 deposited by the tenant in the court is subject to the result in R.C.O.P. No. 115 of 1982. There is no element of wilfulness in non-payment of rent from April, 1981 to May, 1983. The. landlady is filing successive petitions for eviction with a view to get higher rent from the tenant. When the two earlier eviction petitions are pending, the landlady has filed the third petition, viz., R.C.O.P. No. 2738 of 1983. Therefore it is not correct on the part of the landlady to state that the tenant committed wilful default in payment of rent for the periods from June, 1982 to November, 1982 and also from December, 1982 to May, 1983. According to the tenant, both the petitions are liable to be dismissed.
4. On considering the facts arising in this case and after apprising the evidence, both oral and documentary, adduced on both sides, the Rent Controller came to the conclusion that the tenant committed wilful default in payment of rent for the period from June, 1982 to November, 1982 and from December, 1982 to May, 1983 and accordingly ordered eviction in both the petitions. On appeal the appellate authority, on the facts arising out of the case confirmed the order of eviction passed by the Rent Controller and dismissed the appeals. It is against the order passed in R.C.A. Nos. 128 and 129 of 1986, the present revision petitions were filed By the tenant.
5. Learned Counsel appearing for the petitioner/tenant submitted as under : The appellate authority erred in holding that the petitions for eviction for the period subsequent to that comprised in R.C.O.P. No. 115 of 1982, that is for the period from June, 1982 to November, 1982 default during which period is the subject matter of R.C.O.P. No. 397 of 1983, and for the period from December, 1982 to May, 1983 default during which period is the subject matter of R.C.O.P. No. 2738 of 1983 are maintainable. The tenant was unable to pay the rent, since a bona fide dispute was existing between the landlady and her son over the tile to the petition premises. When the earlier R.C.O.P. No. 115 of 1982 was pending, the subsequent petitions in R.C.O.P. Nos. 397 and 2738 of 1983, are not maintainable. The appellate authority ought to have allowed the application for additional evidence prayed for by the petitioner in M.P. No. 425 of 1986 to come to the conclusion that Ex. P-3 dated 30.1.1981 said to have been sent to the tenant by the advocate for the landlady was not served on the tenant but had been returned to the sender. There is no provision in the Rent Control Act compelling the tenant to deposit the rent in court. Further the prescribed authority under Section 9(3) of the Act was not appointed. Therefore, the tenant does not know where to deposit the arrears of rent. When the amount spent towards repairs, etc. was under investigation in an earlier proceedings, viz., R.C.O.P. No. 115 of 1982, the subsequent proceedings in R.C.O. Ps. 397 of 1983 and 2738 of 1983 are not maintainable. When an identical question an to who is the person entitled to receive the rent is the subject matter of C.R.P. No. 1398 of 1986, against R.C.A. No. 276 of 1985, against R.C.O.P. No. 115 of 1982, in which stay of eviction order is granted, the orders of the appellate authority confirming the order of the Rent Controller in R.C.O.P. Nos. 397 and 2738 of 1983 has to be stayed till the disposal of C.R.P. No. 1398 of 1986. Thus, according to the learned Counsel appearing for the tenant there was no wilful default in payment of rent for the periods between June, 1982 and November, 1982 and likewise between December, 1982 and May, 1983. Hence the order of eviction passed by the authorities below ate inconsistent.
6. On the other hand, learned Counsel for the landlady submitted as under : The first petition for eviction was filed in R.C.O.P. No. 115 of 1982, since the tenant committed wilful default in payment of rent for the period from April, 1981 to November, 1981 and during the pendency of the abovesaid proceedings, again the tenant committed wilful default in payment of rent for the periods from June, 1982 to November, 1982 and from December, 1982 to May, 1983 and hence two separate eviction petitions, viz. R.C.O.P. No. 397 of 1983 and R.C.O.P. No. 2738 of 1983, were filed and as such they are maintainable. Further all the three above petitions relate to three different periods and therefore pendency of one eviction petition would not affect the conduct of other two proceedings. The case put forward by the tenant that she incurred an expenditure of Rs. 2,400 towards repairs and white washing of the petition premises was also not accepted. While so, it is not open to the tenant to contend in the present proceedings that there is a justification on the part of the tenant in not paying the rent as and when it becomes due. Admittedly, during the pendency of R.C.O.P. No. 115 of 1982, the tenant committed wilful default in payment of rent for the period from June, 1982 to November, 1982 and from December, 1982 to May, 1983. In such circumstances, it is open to the landlady to file a petition under Section 11(4) of the Act or to file separate eviction proceedings for the default committed during the subsequent periods. Even though there is no provision in the Act compelling the tenant to deposit the rent in court and even though no prescribed authority has been appointed under Section 9(3) of the Act, still the tenant is duty bound to pay the rent every month as and when it becomes due and failure to do so would definitely amount to wilful default in payment of rent. The tenant was already informed that the dispute between the landlady and her son was settled by way of notice to the tenant. Even after the said notice the tenant foiled to pay rent for the petition(s) periods. The tenant is not entitled to incur expenditure towards repairs, etc. any amount more than one month's rent under the provisions of the Act. Therefore the tenant cannot claim that she incurred an expenditure of Rs. 2,400 towards repairs, etc. which was without the permission of the landlady. Further there is no evidence on the side of the tenant to show that the landlady accepted to adjust the amount of Rs. 2,400 towards arrears of rent. Therefore, it is submitted that the orders of eviction passed by the Authorities below in both the eviction petitions are in accordance with law and they being concurrent orders, no interference by this Court is called for.
7. I have heard the rival submissions. The fact remains that the petitioner herein is the tenant in respect of the petition premises on a monthly rent of Rs. 300, exclusive of electricity charges. The tenant committed wilful default in payment of rent for the petition periods, viz. from June, 1982 to November, 1982 and December, 1982 to May, 1983. Earlier the landlady filed R.C.O.P. No. 115 of 1982 under Section 10(2)(i) of the Act for eviction on the ground of wilful default in payment of rent for the period from April, 1981 to November, 1981. During the course of the above R.C.O.P. No. 115 of 1982, the landlady filed M.P. No. 96 of 1982 under Section 11(4) of the Act, since the tenant failed to pay rent amounting to Rs. 2,400. The Rent Controller directed the tenant to pay the rent on or before 18.6.1982, but the tenant did not pay as directed. But against that order the tenant filed appeals in R.C.A. Nos. 1408 and 1409 of 1982. In the appeal proceedings the tenant deposited the arrears amount in court. Thereafter also the tenant did not pay rent to the landlady and again the landlady filed M.P. No. 1342 of 1982 and upon orders in the said petition the tenant deposited Rs. 1800 in court. While disposing of the two appeals, viz. R.C.A. Nos. 1408 and 1409 of 1982, the appellate authority remanded R.C.O.P. No. 115 of 1982 for fresh disposal by the Rent Controller. Thereafter the Rent Controller on a consideration of the facts arising in the remand case ordered eviction on 13.12.1984. Against the said order of eviction passed by the Rent Controller, the tenant preferred an appeal before the Appellate Authority, who confirmed the order of eviction passed by the Rent Controller. Against the Order of the appellate authority, the tenant preferred C.R.P. No. 1398 of 1986 before this Court. While disposing of that revision this Court refused to interfere with the order of eviction passed by the Rent Controller and confirmed by the appellate authority.
8. During the pendency of the abovesaid eviction proceeding, R.C.O.P. No. 115 of 1982, the tenant committed wilful default in payment of rent during the subsequent periods, viz., from June, 1982 to November, 1982 and from December, 1982 to May, 1983 and this made the landlady to file two separate eviction petitions, viz. R.C.O.P. Nos. 397 of 1983 and 2738 of 1983. The Tenant accepted that after March, 1981 she did not pay any rent to the landlady. According to the tenant, the son of the landlady sent her a notice dated 15.4.1980 claiming 3/10 share in the rent to be paid to him, since he is having 3/10 share in the petition premises. According to the tenant, inasmuch as there existed a bona fide dispute between the landlady and her son over the title to the petition premises, she was unable to pay rent to anyone of them. On the other hand, it was pointed out by the landlady that the dispute between herself and her son was settled and this was duly communicated to the tenant by way of a notice and calling upon her to pay the rent to the landlady. According to the tenant, this notice was not served upon her. It is seen that the notice sent by the landlady was returned stating that the tenant (addressee) is not in town. In her deposition, the tenant said that she paid the rent for March, 1981 on 2.10.1981 and obtained a receipt from the landlady. If the tenant had any doubt with regard to the title and the controversy in respect thereof between the landlady and her son, she would not have paid the rent for the month of March, 1981 on 2.10.1981. Thus there is no justification on the part of the tenant to say that she does not know that the dispute between the landlady and her son was settled. Moreover, if the tenant had any doubt as to whom the rent has got to be paid, the tenant could have paid the rent into court. But, according to the tenant, it is not compulsory to deposit the rent into court, and in this case the prescribed authority, as contemplated under Section 9(3) of the Act was not also appointed to enable her to deposit the rent before such authority. When a petition for eviction was filed, nothing prevented the tenant to deposit the rent in the rent control proceedings. This was also not done by the tenant. The landlady then sent notices dated 25.5.1980 and 9.6.1980 calling upon the tenant to pay the arrears of rent and inspite of such notices no rent was paid to the landlady. The arrears of rent was paid only in the rent control appeal proceedings. The tenant deposited Rs. 4,200 in the appellate court proceedings for the period from April, 1981 to May, 1982, but the rent due for June, 1982 to November, 1982 and for December, 1982 to May, 1983 was not at all paid, even after petitions for eviction were filed. The landlady filed M.P. No. 674 of 1983 for a direction to the tenant to pay the rent for the period from June, 1982 to July, 1983 amounting to Rs. 4,200 in which an order was passed directing the tenant to pay that amount on or before 26.9.1983. But the tenant later on requested the court to extend time for payment by filing M.P. Nos. 93 of 1982 and 661 of 1985. Time was extended and the tenant deposited in two instalments. Therefore, it is seen that the tenant used to pay the rent only after eviction proceedings were initiated and not prior to that.
9. According to the tenant, the rent control proceedings in H.R.C.O.P.NO.115 of 1982 was pending and so the subsequent petitions on the very same ground of wilful default in payment of rent under Section 10(2)(i) of the Act cannot be filed. It is the contention of the landlady that during the pendency of the eviction petition R.C.O.P. No. 115 of 1982 if there is any default it is open to the landlady to file either a petition under Section 11(4) of the Act or move a fresh petition for eviction under Section 10(2)(i) of the Act. The contention of the landlady that for each default period, the landlady is entitled to file a fresh petition under Section 10(2)(1) of the Act is well founded. A Full Bench of this Court in the case of Perumal v. Muthuswamy (1962) 1 M.L.J. (S.N.) 55 (F.B.), while considering this aspect held as under:
Under the proviso to Section 10(7) of the present Act (XVIII of 1960) though the language used is not quite clear, a landlord can file an application complaining of default for subsequent months during the pendency of an application on the ground of default in payment of rent for earlier months. The word "other grounds" in the proviso must relate to the necessary grounds other than those which form the subject-matter of the previous petition.
Under Section 35(2) of the New Act, its provisions will apply to proceedings instituted under the earlier Act.
In view of the above said Full Bench decision, it is open to the landlady to file separate petitions for eviction on the ground of wilful default in payment of rent for the subsequent periods, when the earlier petition for eviction on thesame ground is pending.
10. The tenant submitted that she incurred an expenditure of Rs. 2,400 for repairs and white washing which the landlady agreed to adjust towards arrears of rent. But there is no evidence on record to substantiate this version put forward by the tenant. Further, under the Act, the tenant is entitled to incur an expenditure towards repairs only to the extent of one month's rent and beyond that amount the tenant is not entitled to spend without the permission of the landlady. In this case no such permission was obtained from the landlady. Further there is contradiction on this aspect between the oral and documentary evidence. Exs. R-34, R-35 and R-36 respectively for Rs. 650, 700 and 1,050 relate to the expenses incurred for white washing, etc. whereas R.W. 1 in the witness box would say that she had spent Rs. 800 for each year, viz. 1979, 1980 and 1981. However even according to the tenant, for the petition periods, June, 1982 to November, 1982 and December, 1982 to May, 1983, the rent was not paid and the reasons given by the tenant for not paying the rent in time is not convincing. Both the authorities below came to the concurrent conclusion that the tenant committed wilful default in payment of rent for the petition periods. On a careful consideration of the facts arising in these revision petitions in the light of the Full Bench decision cited supra, I hold that there is no infirmity in the orders of eviction passed by the authorities below. The civil revision petitions are dismissed with costs. Time for eviction - two months.