V.
Krishna Mudaliar Vs. Lakshmi Ammal [1995] INSC 509 (18 September 1995)
Kuldip
Singh (J) Kuldip Singh (J) Ahmad Saghir S. (J)
CITATION:
1996 AIR 129 1995 SCC (5) 689 1995 SCALE (5)398
ACT:
HEAD NOTE:
O R D
E R
This
is tenant's appeal. Respondent-landlord filed eviction-petition against the
appellant under Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 (the Act) on the ground that the tenant committed willful
default in the payment of rent. The application was allowed by the Rent
Controller. The appellate court upheld the findings of the Rent Controller. The
High Court dismissed the revision petition filed by the appellant.
The
respondent purchased the premises in dispute on March 30, 1977. It is not disputed that at that time the appellant was
occupying the said premises as a tenant on a monthly rent of Rs.60/-. The
respondent filed a suit for declaration and injunction against the appellant
alleging that after the purchase of the property by him the appellant surrendered
the possession of the premises to him but later on tress-passed into the
property. The appellant, in the suit, contended that he was a tenant in the
property and had never surrendered possession of the building to anyone. The
suit was dismissed. The appeal filed by the respondent against the said order
was also dismissed.
The
respondent served a notice dated August 12, 1981 on the appellant demanding arrears of rent for the period
from March 30, 1977 to August 12, 1981. Section 10(2) (i) and the proviso there under which are
relevant are as under:
"10.
Eviction of tenants.-(1) A tenant shall not be evicted whether in execution of
a decree or otherwise except in accordance with the provisions of this section
or sections 14 to 16 :
Provided
that nothing contained in the said sections shall apply to a tenant whose
landlord is the Government:
Provided
further that where the tenant denies the title of the landlord or claims right
of permanent tenancy, the Controller shall decide whether the denial or claim
is bona fide and if he records a finding to that effect, the landlord shall be
entitled to sue for eviction of the tenant in a civil Court and the Court may
pass a decree for eviction on any of the grounds mentioned in the said
sections, notwithstanding that the Court finds that such denial does not
involve forfeiture of the lease or that the claim is unfounded.
(2) A
landlord who seek's to evict his tenant shall apply to the Controller for a
direction in that behalf. If the Controller, after giving the tenant a
reasonable opportunity of showing cause against the application, is satisfied-
(i) that the tenant has not paid or tendered the rent due by him in respect of
the building, within fifteen days after the expiry of the time fixed in the
agreement of tenancy with his landlord or in the absence of any such agreement,
by the last day of the month next following that for which the rent is payable,
or .............
Provided
that in any case falling under clause (i) if the Controller is satisfied that
the tenant's default to pay or tender rent was not wilful, he may,
notwithstanding anything contained in section 11, give the tenant a reasonable
time, not exceeding fifteen days, to pay or tender the rent due by him to the
landlord upto the date of such payment or tender and on such payment or tender,
the application shall be rejected.
[Explanation.-For
the purpose of this sub-section, default to pay or tender rent shall be
construed as wilful, if the default by the tenant in the payment or tender of
rent continues after the issue of two months' notice by the landlord claiming
the rent.]" It is not disputed that in October, 1981 the appellant
deposited all the arrears of rent before the Rent Controller.
The
only contention raised before us by learned counsel for the appellant is that
the default in the payment of rent by the appellant, if any, was not wilful and
as such he was entitled to the benefit of the proviso to Section 10(2) (i) of
the Act. According to him the Rent Controller should have given time not
exceeding 15 days to pay or tender the rent due by him to the landlord. It is
further contended that the appellant had in fact deposited the rent immediately
after the ejectment-application was filed by the respondent. We see force in
the contention of the learned counsel. Despite the fact that the appellant was
tenant of the property in dispute under the earlier owner, the respondent
dragged the appellant to the civil court on the allegations that he was a
tress-passer. The civil court decided the controversy in favour of the
appellant and held that he was a tenant in the property purchased by the
respondent. In reply to the notice dated August 12, 1981 the appellant stated that he could
not pay the rent because the respondent never accepted him as his tenant and
refused to accept the rent till the proceedings were finally decided by the
civil courts. In the reply it was further stated that the non-payment of rent
was not due to any fault on the part of the appellant and he was prepared to
pay the same in easy instalments. We are of the view that the courts below have
not taken into consideration these facts in the right perspective. Keeping in
view the peculiar facts and circumstances of this case, we hold that the
default in the payment of rent on the part of the appellant was not wilful.
Admittedly the appellant had deposited the rent in the court of the Rent
Controller within one month of the institution of the application.
We
allow the appeal and set aside the impugned judgment of the courts below and dismiss
the application filed by the respondent before the Rent Controller. No costs.
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