1. This revision filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 as amended up to date is being canvassed against the legality, propriety and correctness of the fair and final order passed by the learned Rent Control Appellate Authority made in R.C.A. No. 90 of 1985 dated 20th December, 1988 confirming in toto the fair and final order passed by the learned Rent Controller made in R.C.O.P. No. 103 of 1984 on 3rd July, 1985.
2. Brief facts as culled out from the case records, which led to the revision may be extracted as hereunder:
The residential premises situated in the town of Ootacamund in Nilgiris District was under the tenancy occupation on a monthly rental of Rs. 85 payable on the first of every succeeding English calendar month regularly to the landlady who is the revision petitioner herein. Since January, 1978, the rental has not been paid though it was claimed at the rate of Rs. 150 a suit in O.S. No. 405 of 1979 was filed by the revision petitioner herein before the civil court on 17.11.1979 claiming arrears at the rate of Rs. 150 for a period of about 22 months. Even after the said suit, since the respondent had not paid the rent, R.C.O.P. No. 103 of 1984 was filed on 18.11.1980 under Section 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the 'Buildings Act' claiming arrears at the rate of Rs. 150 per month for the period commencing from 1.1.1978 till 31.10.1980 for 34 months. The respondent resisted the said application on the ground that the agreed rental for the premises was only Rs. 85 and not at the rate of Rs. 150 and that the landlady was in the habit of receiving the rentals as and when occasion arises in a lump sum and not every month regularly and that since she filed a suit O.S. No. 405 of 1979, which was pending disposal, he could not pay the rent to the landlady and that therefore, there was no wilful default on his part and prayed for the dismissal of the petition for eviction.
3. On recording the oral and documentary evidence on behalf of both parties and on considering the entire matter with the arguments advanced on their behalf the learned Rent Controller has found that the ground for eviction has not been established and accordingly rejected the petition. This was assailed by the landlady before the appellate authority by preferring the Rent Control Appeal above referred. Even on reappraisal of the entire adduced evidence, case records and the respective arguments made on behalf of the parties herein the learned Rent Control Appellate Authority declined to interfere by confirming the dismissal of the petition filed by the revision petitioner herein and accordingly dismissed the appeal. Aggrieved at this and having lost before both courts below, the landlady, has approached this Court by filing this revision petition challenging the legal sanctity, propriety of the fair and final orders passed concurrently by both courts below.
4. I have heard the Bar for the respective parties herein for and against. Miss. Usha, learned Counsel appearing for the petitioner took strenuous attempt in convincing me that the very inaction of the tenant in not venturing his attempt to pay the rent, which he is legally bound to pay from the period of 1.1.1978 till the date of filing of the suit O.S. No. 405 of 1979, namely, on 17.11.1979, clearly projects the default in payment, which is not only wanton but also deliberate and wilful and that even after the filing of the suit till it was disposed in the month of October, 1980, the inaction of the tenant, cannot be recognised in law that it is a justifiable one under any circumstances. It was her endeavour that for a period of more than 33 months the tenant was taking his hide under the pretext of a suit filed by the landlady, only after 22 months from the date of commencement of the arrears, which act of the tenant, no court of law could allow and recognise as an excusable one. According to the learned Counsel, both the courts below, though have given a concurrent finding, have clearly overlooked the abovesaid aspect but however gone wrong in holding that the payment made by the tenant in a lump sum by sending it by way of cheque with a covering letter after the judgment in the suit was delivered in the month of October, 1980, clearly amounts to the acceptance of the rent in periodical intervals. Therefore, in all, the endeavour of the learned Counsel for the revision petitioner was that both the impugned orders though passed concurrently cannot be sustained and as it is, she pleaded for the interference of this Court by virtue of Section 25 of the Buildings Act.
5. Controverting the same, I have heard Mr. Ilango, learned Counsel appearing on behalf of the tenant/respondent. Learned Counsel justifies the concurrent findings given by both courts below by contending that the very conduct of the landlady in claiming the rental at the rate of Rs. 150 per month for the whole period commencing from January, 1978 would belie the very concept of 'wilful default' in the payment of rent while particularly under the circumstances, both courts have concurrently held that the agreed monthly rental was not at Rs. 150, but however Rs. 85 alone and that apart, the attempts and venture made by the respondent/tenant in sending the amount representing the entire arrears, though after the delivery of the judgment, ought to have been accepted as a reasonable one for the reason of the existence of a dispute with regard to the quantum of rent and the moment it was settled, he has sent the same to the landlady by cheque with a covering letter, which was returned as unserved, followed by filing of a petition under Section 8(5) of the Buildings Act, would also show and clearly demonstrate the bona fide nature and attitude of the respondent and that therefore, his inaction or non-payment of the rent if any, cannot be deemed to be a wilful default and by so saying, he justifies the concurrent orders rendered by both courts below.
6. In the light of the above rival position, I have perused the pleadings as well as the legal evidence adduced and the arguments advanced on behalf of the respective parties herein through the Bar in its every depth and breadth. Ex.B-1 is the copy of the plaint relied on behalf of the respondent herein, filed in O.S. No. 405 of 1979. Ex.B-2 is likewise the copy of the written statement relied on behalf of the respondent/tenant and the other significant document is Ex.B-5, the copy of the notice sent in the month of October, 1980 by the tenant/respondent to the landlady. Basing upon Ex.B-1 and Ex.B-2, learned Rent Controller has given a finding that a sum of Rs. 1,275 has been paid representing the rent for a period of 15 months and another payment of Rs. 1,020 representing the rent for a period of 12 months to the landlady. This finding has been totally accepted by the learned Rent Control appellate authority also. My careful study and perusal of both Ex.B-1 and Ex.B-2 do not show any reference to the payment of any amount for any period as the findings by both courts below go to show. There was absolutely no iota of reference to the same. Under the circumstances, it is not known as to how both courts below have referred the two payments amounting to more than thousands, representing the whole period of arrears, as having been paid. On this aspect alone, I am firm in my view to say that the learned Rent Controller as well as the Rent Control Appellate Authority have clearly overlooked and given a finding with no basis or no pleadings at all, nor evidence adduced on behalf of the parties, and that under the circumstances, the concurrent findings given have become vulnerable and liable to be set aside.
7. Another significant aspect made available in this case is that there is no controversy among the parties herein with regard to the commencement of the period of arrears, namely from 1.1.1978. It was the specific case of the respondent/tenant that he has paid the rent till the end of December, 1977 and that thereafter, the rent accrues. The plea of the revision petitioner coincides with the plea of the tenant that the rental accrues from 1.1.1978 onwards. So also, the claim made by the revision petitioner/landlady that on the date of filing the present rent control petition during November, 1980. The period of rental accrued was 34 months, has not at all been controverted or denied either in the evidence before the court or by pleadings by and on behalf of the respondent/tenant. Admittedly, the tenant has not paid the rent for a period of 34 months. The explanation offered by him seems to have been that since the landlady claimed the rental at an exorbitant rate of Rs. 150 per month and since filed a suit O.S. No. 405 of 1979 he was not in a position to pay the rent and that therefore, in such a course and mode the arrears had accumulated. This plea, undoubtedly, cannot at all be accepted for the simple reasoning that the tenant has admitted that he has paid all the rent till the end of December, 1977 and for the subsequent period, he has not paid the rent. Of course, it may be true, that the landlady had claimed at the rate of Rs. 150 per month. Assuming for a moment that she has been claiming at an exorbitant rate for the obvious reasons known to her, if the tenant has been paying at a lesser rate of Rs. 85 then to controvert or expose the real colour and attitude of the landlady, the respondent/tenant would have taken all the necessary steps as provided under the Act, at the rate he has been originally paying to her, namely, he ought to have sent the amount by Money Order every month, which if refused, should have sent a letter or notice calling upon her to specify the name of a Scheduled Bank so as to deposit the same, and on her refusal to do so, he could have remitted under Section 8(5) of the Buildings Act and admittedly none of the abovesaid options have been exercised by the respondent/tenant herein. On the other hand, it seems that he has been squatting upon the rental premises conveniently holding the rental in his pocket to the very detriment of the landlady, which would mean, the statutory obligation and duty cast upon the respondent by the Statute has been totally ignored by him and which alone, in my respectful view, landed the tenant into deep trouble. Therefore, there is every force and matrix in the arguments advanced on behalf of the revision petitioner through the Bar.
8. What the tenant/respondent appears to have done in this case is after the delivery of the judgment in O.S. No. 405 of 1979 in the month of October, 1980, after a lapse of 33 moths, he has caused a notice to be issued to the landlady under Ex.B-5 coupled with a cheque for a lump sum, reckoning the period of arrears from 1.1.1978 onwards and thereby calling upon the landlady to accept the same. This attitude of the tenant cannot be accepted as a justifiable one for the simple reasoning that only in order to have an escape from the clutches of law, he has set up the theory of false defence that there was an agreement among the parties themselves that the landlady was in the habit of receiving rent at periodical intervals and not every month regularly and that therefore he has filed a petition under Section 8(5) of the Buildings Act H.R.C. No. 2 of 1981 and thereupon, have been depositing the rent agreed till then. But it is worthwhile to note that all the venture and efforts taken by the tenant is only after the judgment was rendered by the civil court in the month of October, 1980 and for the period commencing from January, 1978 till the delivery of judgment in October, 1980, covering for a period of 34 months, there was nothing available to show that the tenant has taken any earnest effort, to ascribe him that he had taken all the efforts as provided by law, to show his bona fide. The very inaction of the tenant throughout clearly amounts to not only wilful default but also exposes his wanton and deliberate attitude in not paying the rent. Therefore, under the circumstances, after having fully considered, I have no hesitation in my mind to say that the very attitude of the respondent/tenant for the above referred period of 34 months, clearly landed him in the concept of supine indifference clearly exhibited and callousness on his part and thereby, the respondent/tenant has landed himself to get himself evicted from the rental premises. May be true, that subsequently he has been depositing the amount by filing a petition as above referred. But however, in my respectful view, that cannot be a ground to be allowed to controvert his legal commitment and therefore, I am fully satisfied to hold that the tenant is under the brink of 'wilful default' in the payment of rent, which squarely comes under the purview of Section 10(2)(1) of the Buildings Act.
9. Unfortunately both the courts below, though concurrently held the view, have virtually failed to see that even the agreement on the contrary set up by the tenant that the rent was used to be paid at irregular intervals and periodicals has not been proved by acceptable legal evidence by the defence. In fact, if I say so, on the basis of the records, no such plea has been taken even in the counter-statement nor substantiated with any oral evidence adduced. If this is the position, I am at every surprise to see as to on what basis, the courts below have arrived at a conclusion that the landlady was in the habit of receiving the rent whenever the tenant offered to pay, to the utter disregard of the legal mandate provided under the statute. In this regard, I can say without any hesitation, that the concurrent findings given by both courts below are totally bereft of any legal sanctity and propriety and Highly erroneous and as such, liable to be set aside forthwith.
10. It is thus having considered, I am fully satisfied to endorse my view with the contentions advanced by the learned Counsel on behalf of the revision petitioner and unable to countenance the views subscribed by the Bar on behalf of the respondent.
11. In the result, the revision succeeds and stands allowed. The order passed by the Rent Control Appellate Authority in R.C.A. No. 90 of 1985 on 20.12.1988 is set aside. Consequently, the tenant/respondent is hereby ordered to be evicted from the rental premises and put the landlady in possession of the same within a period of six months from today. However, there will be no order as to costs under the circumstances.