Das Diware & Ors Vs. Balkrishna Wamaii Dande & ANR  INSC 170 (31
Shah Mohammed Quadri, S.N.Phukan
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, Arnravati and the writ petition filed by the tenant was also
dismissed in limine.
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
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 lo be paid as per his convenience and he was neither a habitual
defaulter nor defaulted in payment of rent. Both the authorities below on fuels
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.
been urged before us that the tenant was neither a habitual defaulter nor was
in arrears of rent.
quote below items (i) & (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 leaae or
determine the lease if the lease -is expressed to be determinable at his
option; or (.?)-"lf.after hearing the parties the Controller is salisfied:-
"(i; - that on the date of filing the application the tenant was in
arrears of rent for any 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 he shall grant the landlord
permission to give notice to determine the lease as required by sub- claused)."
13 of the Order prohibits a landlord from serving a notice for eviction on the lenant
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 grounds alleged are item Nos. (i) and (ii)
of sub-clause (3) of Clause 13 quoted above.
word 'habitual' occurring in item (ii) have not been defined in the Order.
meaning to the words "habit' and "habitually' as given in The Law
Lexicon (Second Edition) by P Ramanatha Aiyar's K :
Habit - Settled tendency or practice, menial 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." "Habitual - constant; customary; addicted
to a specified habit." & Ors. AIR. 1984 SC 1334_ considered the
question of habitual criminal and in paragraph 31 the expression
"habitually' was explained as follows:- 'The expression 'habitually' means
'repeatedly' or 'persistendy". 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....................... .,," Therefore, the expression
'habitual" would mean repeatedly or persistently and imphes a thread of
continuity stringing together similar repeated acts. An isolated default of
rent would not mean that tenant was a habitual defaulter.
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, tenant was informed by Smt. Ganga Bai that. tenant could pay The
rent directly to the landlord as the amount to be recovered by her was fully
been urged on behalf of the tenant-appellant 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.
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.
application before the Controller it was alleged by the landlord that the
tenant was in arrears of rent .from 1.4.76 to 31.12.83 for about 93 months
amounting to Rs. 5.766/- and that the tenant deposited Rs. 4,000/- in civil
court in view of the above order by four installiments leaving balance of RS.
1,766,''-.. 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 auhorities below.
above manner of depositing rent in installments clearly shows that the tenant
"repeatedly and continuously defaulted in payment of rent and he was,
therefore, habitual defaulter. He was also in arrears of rent as he did not pay
the mil amount of rent.
attention has been drawn to the decision of this 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 tenantl stopped payment of rent. This Court
held that as the tenant was prohibited and restrained from paving rent he did
not commit willful default in payment of rent but that is not .so in the present
appeal as the tenant was not prohibited for making payment of rent.
what has been stated above we hold that authorities below rightly held that the
appellant-tenant not only defaulted in payment of rent but he was a habitual
In the result, the appeal has no merits and accordingly
it is dismissed. Parties bear their own costs.