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Vijay Amba Das Diware And Others v. Balkrishna Waman Dande And Another
Factual and Procedural Background
The landlord sought permission under items (i) and (ii) of sub-clause (3) of clause 13 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (“the Order”) to serve a notice of eviction on the tenant. The Controller granted the permission. The tenant’s appeal was dismissed by the Resident Deputy Collector, Amravati, and his writ petition was dismissed in limine by the High Court. The present appeal before the Supreme Court is by the legal representatives of the original tenant.
Legal Issues Presented
- Whether the tenant was “in arrears of rent for an aggregate period of three months” on the date of the landlord’s application, thereby attracting item (i) of clause 13(3) of the Order.
- Whether the tenant was “habitually in arrears with the rent” within the meaning of item (ii) of clause 13(3) of the Order.
Arguments of the Parties
Appellant-Tenant’s Arguments
- The tenant was neither a habitual defaulter nor in arrears of rent.
- Because a prior civil-court order directed the tenant to deposit rent in court in a suit filed by Smt. Ganga Bai, the landlord’s right to collect rent was suspended; therefore, non-payment to the landlord should not be treated as default.
- Rent was payable “as per convenience” rather than on the first day of every month.
Respondent-Landlord’s Arguments
- The tenancy was monthly since 1961, with rent due on the first day of each month.
- The tenant was a habitual defaulter, having failed to pay rent from 1-4-1976 to 31-12-1983, leaving a balance of ₹1,766 even after depositing ₹4,000 in court.
- The civil-court order did not relieve the tenant of his obligation to pay rent regularly; it merely changed the payee from landlord to court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 | Defined “habitually” as acts that are repeated, persistent, and similar, requiring a “thread of continuity.” | Used to interpret “habitual” in clause 13(3)(ii), emphasizing that isolated defaults do not suffice; repeated defaults do. |
| J. Jermons v. Aliammal, (1999) 7 SCC 382 | Held that where a tenant is legally prohibited from paying rent, failure to pay is not wilful default. | Distinguished: unlike J. Jermons, the tenant here was not prohibited from paying rent; thus the protection in that case did not apply. |
Court's Reasoning and Analysis
1. The Court first examined the wording of clause 13(3)(i) and (ii), noting that the Order bars eviction notices without prior permission and sets specific grounds for granting such permission.
2. To construe “habitual,” the Court relied on dictionary meanings and the interpretation in Vijay Narain Singh, concluding that “habitual” implies repeated, persistent default forming a continuous pattern.
3. The pleadings showed undisputed arrears from April 1976 to December 1983 (93 months). The tenant deposited only ₹4,000 in four instalments, leaving ₹1,766 unpaid.
4. The civil-court order merely redirected rent payments to the court; it did not suspend the tenant’s obligation to pay monthly. Consequently, any failure to deposit rent regularly—even in court—constituted default.
5. The Court rejected the tenant’s contention that rent was payable “as per convenience,” affirming the findings of both lower authorities that rent was due monthly on the first day.
6. J. Jermons was distinguishable because in that case the tenant was expressly prohibited from paying rent; here there was no such prohibition.
7. Given the long-standing, continuous arrears and partial payments, the Court found both elements satisfied: (a) arrears for more than three months and (b) habitual default.
Holding and Implications
APPEAL DISMISSED.
The Controller’s permission to the landlord to serve a notice determining the lease stands confirmed. The decision reaffirms that tenants who repeatedly fail to pay rent over an extended period will be deemed “habitual defaulters,” even if a court directs payment to a third party, so long as the underlying obligation to pay monthly subsists. No new precedent is set beyond clarifying the application of clause 13(3) of the 1949 Order to similar fact situations.
S.N Phukan, J.— The landlord filed an application under Items (i) and (ii) of sub-clause (3) of clause 13 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (for short “the Order”) before the Controller which was allowed and the Controller granted permission to the landlord to serve the notice of eviction on the tenant. The appeal was dismissed by the Resident Deputy Collector, Amravati and the writ petition filed by the tenant was also dismissed in limine.
2. The landlord pleaded before the Controller that the tenant was a monthly tenant since 1961 and rent was to be paid on the first day of every month according to the English calendar. It was also pleaded that the tenant was a habitual defaulter in payment of rent. The appellant tenant pleaded before the Controller that rent was to be paid as per his convenience and he was neither a habitual defaulter nor defaulted in payment of rent. Both the authorities below on facts held that it was a monthly tenancy and also came to the finding that the tenant was a habitual defaulter and defaulted in payment of rent. The present appeal is by the legal representatives of the original tenant.
3. It has been urged before us that the tenant was neither a habitual defaulter nor was in arrears of rent.
4. We quote below items (i) and (ii) of sub-clause (3) of clause 13 of the Order:
“13. (1) No landlord shall, except with the previous written permission of the Controller:
(a) give notice to a tenant determining the lease or determine the lease if the lease is expressed to be determinable at his option; or
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(3) If after hearing the parties the Controller is satisfied:
(i) that on the date of filing the application the tenant was in arrears of rent for an aggregate period of three months and that he failed to deposit with the Controller the amount of arrears ordered to be deposited by the Controller within such time as may be fixed by him; or
(ii) that the tenant is habitually in arrears with the rent; or
(iii)-(ix)***
he shall grant the landlord permission to give notice to determine the lease as required by sub-clause (1).”
5. Clause 13 of the Order prohibits a landlord from serving a notice for eviction on the tenant except with the previous written permission of the Controller and such permission can be given if the landlord can make out any one ground mentioned in the said clause. In this appeal the grounds alleged are items (i) and (ii) of sub-clause (3) of clause 13 quoted above.
6. The word “habitual” occurring in item (ii) have not been defined in the Order.
7. The meaning to the words “habit” and “habitually” as given in The Law Lexicon (2nd Edn.), by P. Ramanatha Aiyar is:
“Habit.—Settled tendency or practice, mental constitution. The word ‘habit’ implies a tendency or capacity resulting from the frequent repetition of the same acts. The words by ‘habit’ and ‘habitually’ imply frequent practice or use.
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Habitual.—Constant; customary; addicted to a specified habit.”
8. This Court in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, AIR 1984 SC 1334 considered the question of a habitual criminal and in para 31 the expression “habitually” was explained as follows:
“The expression ‘habitually’ means ‘repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit.”
9. Therefore, the expression “habitual” would mean repeatedly or persistently and implies a thread of continuity stringing together similar repeated acts. An isolated default of rent would not mean that the tenant was a habitual defaulter.
10. As directed by this Court the application and written statement filed by the parties before the Controller have been furnished. We find from the pleadings that there was a civil suit filed by one Smt Ganga Bai in which the tenant was a party and the tenant was directed to pay the rent directly to the Court. Subsequently, the tenant was informed by Smt Ganga Bai that the tenant could pay the rent directly to the landlord as the amount to be recovered by her was fully satisfied.
11. It has been urged on behalf of the appellant tenant that the right to collect rent by the landlord was suspended by the above order of the civil court and, therefore, non-payment of rent by the tenant to the landlord cannot be treated as default.
12. The civil court did not restrain the tenant from his legal liability to pay rent regularly at the end of the month and he was only directed to deposit the rent in the Court instead of paying to the landlord. We are, therefore, unable to accept the contention that the tenant had no legal liability to deposit rent regularly in the Court till the amount was fully satisfied.
13. In the application before the Controller it was alleged by the landlord that the tenant was in arrears of rent from 1-4-1976 to 31-12-1983 for about 93 months amounting to Rs 5766 and that the tenant deposited Rs 4000 in the civil court in view of the above order by four instalments leaving a balance of Rs 1766. In the written statement the above averments have not been denied but plea taken was that rent was to be paid as per the convenience of the tenant which was rejected by both the authorities below.
14. The above manner of depositing rent in instalments clearly shows that the tenant repeatedly and continuously defaulted in payment of rent and he was, therefore, a habitual defaulter. He was also in arrears of rent as he did not pay the full amount of rent.
15. Our attention has been drawn to the decision of this Court in J. Jermons v. Aliammal (1999) 7 SCC 382. In that case the landlord was served with a prohibitory order by the Tax Recovery Officer for receiving rent and the tenant was also prohibited and restrained from making payment of a certain debt and from that date the tenant stopped payment of rent. This Court held that as the tenant was prohibited and restrained from paying rent he did not commit wilful default in payment of rent but that is not so in the present appeal as the tenant was not prohibited from making payment of rent.
16. For what has been stated above we hold that the authorities below rightly held that the appellant tenant not only defaulted in payment of rent but he was a habitual defaulter.
17. In the result, the appeal has no merits and accordingly it is dismissed. Parties to bear their own costs.
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