J.J. Lal
Pvt. Ltd. & Ors Vs. M.R. Murali & Anr [2002] Insc 70 (8 February 2002)
R.C.
Lahoti & Brijesh Kumar R.C. Lahoti, J.
The
landlord-respondents initiated proceedings for eviction of the
tenant-appellants from the suit premises described as Door No.244 and 264, Walltax
Road, Chennai on the ground available under clause (i) of sub-section (2) of
Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
(hereinafter, 'the Act' for short), by applying to the Controller for a
direction in that behalf. It was alleged in the application for eviction filed
on 6th April, 1989 that the tenants did not pay the
rent of premises Door No.264 for January and February, 1989 at the rate of Rs.1,000/-
per month and for premises Door No.244 for the month of February, 1989 at the
rate of Rs.4,000/- per month. The tenants, in their written statement, denied
their being defaulters and submitted that there was dispute as to the rate at
which the rent was payable and also as to the quantum of arrears, though, they
were agreeable and always prepared to pay the rent at which it was previously
paid but for the exaggerated and inflated demand of the landlords.
It
appears that the suit premises are owned by the Municipal Corporation of
Chennai and are held by the landlords as allottee of the Municipal Corporation.
The landlords have further leased out the premises to the tenants (appellants
before us). Thus, there are three persons associated with the suit premises __
the Municipal Corporation, their allottees (i.e. the respondents), and further
lessees inducted by the allottees i.e. the appellants. We are not concerned
with any controversy between the Municipal Corporation and its allottees. The
Municipal Corporation was never a party to the litigation and has sought for
intervention at the hearing before this Court but the intervention is being
denied for the reasons which we would be stating at the end of this judgment.
We would, therefore, confine ourselves to the controversy arising for decision
between the parties before us and for that purpose, in this judgment, the
respondents shall be referred to as 'landlords' and the appellants shall be
referred to as 'tenants'.
In the
written statement, the tenants confined themselves to denying their being
defaulters and raising dispute as to the rate of rent and quantum of arrears.
However, an anxiety for protecting their possession over the suit premises and
zeal for giving a rebuff to the landlords, impelled them to file an additional
counter in September 1993, in addition to their counter filed by way of written
statement in February 1990. In the additional counter, it was submitted that
the tenants had reliably learnt, on making enquiries from the Municipal
Corporation of Madras, that long term lease was granted
by the Corporation in favour of late M.B. Ramachandra Naidu, who expired in the
month of March 1982. With his death, the lease came to an end. Even the term of
lease by Municipal Corporation in favour of the landlords had expired and the
Corporation had taken steps to create a lease directly in favour of the actual
occupants and the respondents had agreed to pay the rent to the Municipal
Corporation w.e.f. 1.4.1982 and onwards. For these reasons, it was submitted
that the proceedings for recovery of possession from the tenants were not
maintainable. This additional counter, far from defending the tenants, has
proved to be a potent troubleshooter for the tenants and the bone of contention
in this litigation as will be noticed shortly hereinafter.
We may
hasten to add to the factual statement that sometime after the month of March
1993, one of the partners of the tenants was delivered a notice by the
Municipal Corporation which reads as under:- "NOTICE Corporation of
Chennai Land Revenue Department.
Ref.:
8/1737/93 Date:
In
your letter dated 26.03.93 you have confirmed that you are occupying the
premises No.244, Walltax
Road, (4110 sq.ft.)
belonging to Corporation of Chennai from 1.4.82.
The
lease period has already elapsed. More over you have agreed to pay the lease amount
by your letter dated 26.3.93.
Since
you are enjoying the premises belonging to Corporation of Chennai the following
amount is due from you:
(1.4.82
to 31.3.89) prior to 1989 162.96 1989-90 35962.50 1990-91 95900.00 1991-92
113162.00 ----------------- 245187.46 ----------------- Hence you have to pay
the amount of Rs.245187.46 before 15.4.93 to the Corporation Treasury, failing
which the above premises belonging to Corporation of Chennai will be auctioned
to public.
For
Commissioner To Surendar Kumar Chouraria, 40, Ormes Road, Kilpauk, Madras 10.
Though,
the landlords had filed two applications for eviction in respect of two
premises (i.e. Door Nos. 244 and 264), both the applications were tried
together and disposed of by a common judgment dated 15.12.1995 by the
Controller. The Controller found, vide para 9 of its order, that the tenants
have been remitting the agreed rental amount to the landlords which factum is
borne out by the accounts produced by them. It was an admitted position that
the taxes due and payable by the landlords were being remitted by the tenants
to the Corporation on behalf of the landlords. However, a sister of one of the
landlords had filed a suit in the High Court claiming a share in the suit
property while the Corporation had issued notice to the tenants demanding
payment of rent. Barring the period of two months, there was no occasion for
non-payment of rent. Further, it was not properly proved as to whether the
landlords had demanded the payment of arrears by issuance of notice to the
tenants. The Controller held that there was a doubt that the application for
eviction was filed for pressurizing the tenants because of disputes other than
default in payment of rent. In the result, the Controller held that the tenants
were not defaulters and not liable to be evicted. The applications for eviction
were directed to be dismissed.
The
landlords preferred appeals. In its order dated 24.12.1996, the Appellate
Authority framed two points for decision, viz.
(1) whether
the respondents committed wilful default, and
(2) whether
the respondents were liable to be evicted due to their denial of appellants'
right over the property being not bona fide.
The
Appellate Authority, on the question of default in payment of rent, reiterating
the circumstances found proved by the Controller, felt impressed by an
admission made by the landlord PW1 in his statement that the tenants used to
pay rent once in two months and that the landlord or her father used to go to
the tenants' firm to collect the rent. On totality of the facts and
circumstances, the Appellate Authority concluded that there was no willful
default on the part of the tenants in payment of rent.
The
Appellate Authority also entertained a doubt if the tenants had at all received
any notice from the landlords demanding payment of rent.
As to
the second point for decision, the Appellate Authority concluded that the
denial of title of the landlords by the tenants was bona fide. On these
findings, the Appellate Authority dismissed the appeals and confirmed the
judgment of the Controller.
The
landlords preferred civil revisions in the High Court. The High Court has, by
its common order, disposing of the four civil revision petitions, reversed the
judgment of the Controller and the Appellate Authority. A perusal of the
impugned judgment of the High Court shows that the High Court also dealt with
the same two points for determination as were framed by the Appellate Authority
in view of the two submissions made on behalf of the landlord-petitioners before
it. However, vide para 19 of its judgment, the High Court observed __
"before we consider the ground for default, the other ground of denial of
title should be considered". The High Court then embarked upon considering
the plea of the landlords that the tenants had indulged into unjustifiably
denying the landlords' title which provided a ground for eviction of the
tenants as denial of landlords' title could not be said to be bona fide. This
finding of the High Court cast its shadow on its appreciation and reasoning
relating to the other issue and led it into concluding that the default in
payment of rent was based upon a 'series of attempts' to deprive the landlords
of their lawful rights which was malafide and, therefore, there was no
hesitation in holding that the default was willful though it was for a short
period only. In the end, the High Court has directed the tenants to be evicted.
These appeals have been filed by the tenants by special leave feeling aggrieved
by the judgment of the High Court.
We have
heard Shri Govind Das, Senior Advocate, for the tenant-appellants and Shri M.N.
Rao, Senior Advocate, for the landlord-respondents. Having heard them, we are
satisfied that the judgment of the High Court cannot be sustained and the
appeals have to be allowed, followed by certain directions to the tenants,
which, in view of the prolonged litigation between the parties, this court must
make so as to dispense substantial justice to the parties and protect their
interests.
The
decision of the case hinges upon the two questions framed by the Appellate
Authority and we propose to deal with them but in the same order in which they
were dealt with by the High Court.
Indeed
the forceful submissions made by the learned senior counsel for the parties
have also centred around those two issues highlighting very many aspects
touching the said questions.
Before
we proceed further, it would be relevant to extract and set out the following
provisions of the Act:-
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 seeks 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 xxx xxx xxx xxx (vii) that the tenant has denied the title of the landlord
or claimed a right of permanent tenancy and that such denial or claim was not
bona fide, the Controller shall make an order directing the tenant to put the
landlord in possession of the building and if the Controller is not so
satisfied, he shall make an order rejecting the application.
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 willful, 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 up to the date of such payment or tender and on such payment or
tender, the application shall be rejected." First, the question __ whether
the tenants are liable to be evicted on the ground of denial by them of the
title of landlords, the denial being not bona fide, within the meaning of clause
(vii) of sub-section (2) of Section 10 of the Act? The scheme of the Act is
that an application for eviction of tenant has to be filed before the
Controller. One of the objects sought to be achieved by the Act is the
prevention of unreasonable eviction of tenants. Needless to say it is for the
landlord to allege and prove a ground for eviction entitling him to an order of
eviction and disentitling the tenant of his protection enjoyed under the Act.
To claim eviction under Section 10(2)(vii), it is for the landlord to allege
that the tenant has denied the title of the landlord or claimed a right of
permanent tenancy and that such denial or claim was not bona fide.
Once
the landlord has adduced evidence substantiating the twin ingredients of the
ground for eviction, the onus would shift on the tenant to show that either
there was no denial or claim attracting applicability of clause (vii) or the
same was bona fide. The application for eviction, in the case before us, does
not contain any averment making out a case of denial of landlords' title by the
tenants.
The
learned senior counsel for the landlords candidly admitted that the claim for
eviction, as originally filed, was not founded on the plea of tenants' denial
of landlords' title in as much as such denial did not precede the filing of
application but the same became available to the landlord on the filing of the
additional affidavit in September 1993 by the defendant-tenants during the pendency
of the proceedings before the Controller. It was submitted that landlord can
justifiably demand eviction of tenant on the plea raised in the written
statement as that plea in itself is sufficient to provide availability of a
ground for claiming eviction of tenant to the landlord. We are not impressed.
We may
straightaway refer to a decision of this Court in Majati 732, which was a case
under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
Eviction petition was filed on the ground of bona fide requirement of the
landlord. In the written statement, the tenant denied the title of landlord
which was sought to be made a ground for eviction submitting that such denial
made out a ground for eviction under Section 10(2)(vi) of Andhra Act. This
Court, rejecting the argument that the denial of title must be anterior to the
proceedings for eviction, held that even a denial of a landlord's title by the
tenant in the written statement in an eviction petition under the Rent Act
furnishes a ground for eviction and can be relied upon in the very proceedings
in which the written statement containing the denial has been filed. The
reasoning which appealed to this Court was that to insist that a denial of
title in the written statement cannot be taken advantage of in that suit but
can be taken advantage of only in a subsequent suit to be filed by the
landlord, would only lead to unnecessary multiplicity of legal proceedings as
the landlord would be obliged to file a second suit for ejectment of the tenant
on the ground of forfeiture entailed by the tenant's denial of character as a
tenant in the written statement. The submission of the learned counsel for the
tenant was that in any event the landlord had failed to apply for amendment of
his plaint and incorporate the ground of denial of title therein as he was
bound to do in order to get relief on that ground which had arisen after the
eviction petition was filed. This Court held:- "We agree that normally
this would have been so but, in the present case, we find that the Trial Court,
namely, the Rent Controller, framed an issue as to whether the tenant's denial
of the landlord's title to the schedule property including the said premises
was bona fide. The parties went to trial on this clear issue and the appellant
had full knowledge of the ground alleged against him. It was open to him to
have objected to the framing of this issue on the ground that it was not
alleged in the eviction petition that the appellant had denied the title of the
respondent and that the denial of title was bona fide. If he had done that the
respondent could have well applied for an amendment of the eviction petition to
incorporate that ground. Having failed to raise that contention at that stage
it is not open now to the appellant to say that the eviction decree could not
be passed against him as the ground of denial of title was not pleaded in the
eviction petition." [emphasis supplied] Appeal No.5460 of 1999 decided on
18.1.2002), while dealing with power of the Court to take note of subsequent
events and then to grant, deny or modify the relief sought for in the plaint,
this Court has held:- ". . . . . . The ordinary rule of civil law is that
the rights of the parties stand crystalised on the date of the institution of
the suit and, therefore, the decree in a suit should accord with the rights of
the parties as they stood at the commencement of the lis.
However,
the Court has power to take note of subsequent events and mould the relief
accordingly subject to the following conditions being satisfied :
(i)
that the relief, as claimed originally has, by reason of subsequent events,
become inappropriate or cannot be granted; (ii) that taking note of such
subsequent event or changed circumstances would shorten litigation and enable
complete justice being done to the parties; (iii) that such subsequent event is
brought to the notice of the Court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken by surprise. . . . . . .
. . . . . . . . . .
Such
subsequent event may be one purely of law or founded on facts. In the former
case, the Court may take judicial notice of the event and before acting thereon
put the parties on notice of how the change in law is going to affect the
rights and obligations of the parties and modify or mould the course of
litigation or the relief so as to bring it in conformity with the law. In the
latter case, the party relying on the subsequent event, which consists of facts
not beyond pale of controversy either as to their existence or in their impact,
is expected to have resort to amendment of pleadings under Order 6 Rule 17 of
the CPC. Such subsequent event the Court may permit being introduced into the
pleadings by way of amendment as it would be necessary to do so for the purpose
of determining real questions in controversy between the parties." (1951)
SCR 277, this Court held that it was permissible for a plaintiff to rely upon
different rights alternatively and there is nothing in the Code of Civil
Procedure to prevent a party from making two or more even inconsistent sets of
allegations and claim relief thereunder in the alternate. However, the question
was whether a relief based on such alternative case could be granted though not
set out in the plaint. This Court proceeded to hold that the court cannot grant
relief to the plaintiff on a case for which no foundation was laid in the
pleadings and which the other side was not called upon or had not an
opportunity to meet is the rule. But when the alternative case, which the
plaintiff could have made, was not only adopted by the defendant in his written
statement but was expressly put forward in answer to the claim which the
plaintiff made in the suit, there would be nothing improper in giving the
plaintiff a decree upon the case which the defendant himself makes. A demand
for relief based on alternative case may cause surprise to the defendant but
when the defendant himself pleads that case there will be no surprise to him,
no question of adducing evidence on those facts and no injustice could possibly
result to the defendant. To sum up the gist of holding in Firm Sriniwas Ram
Kumar's case is: If the facts stated and pleading raised in the written
statement, though by way of defence to the case of the plaintiff, are such
which could have entitled the plaintiff to a relief in the alternative, the
plaintiff may rely on such pleading of the defendant and claim an alternate
decree based thereon subject to four conditions being satisfied, viz.,
(i) the
statement of case by defendant in his written statement amounts to an express
admission of the facts entitling the plaintiff to an alternative relief,
(ii) in
granting such relief the defendant is not taken by surprise,
(iii) no
injustice can possibly result to the defendant, and
(iv) though
the plaintiff would have been entitled to the same relief in a separate suit
the interest of justice demand the plaintiff not being driven to the need of
filing another suit.
The
Court may refuse to take note of a subsequent event though admitted if the
admitted facts are essentially required to be contained in the plaint and stand
in need of something more being alleged and proved over and above the admitted
facts. Then the Court would not go in search for some imaginary facts for
founding the relief. In such (1981) 3 SCC 103, held that the Court commits a manifest
error apparent on the record by upholding the plaintiff's case on the ground
neither pleaded nor suggested in the pleadings.
441
was a landlord tenant dispute where the plaintiff-landlord claimed relief of a
direction to the tenant to put the landlord in possession on the ground of
non-payment of rent under Rent Control Law. This Court opined that under the
relevant provisions in the Statute a landlord seeking eviction of the tenant is
required to make an application in this behalf. Such application is sustainable
on one of the grounds specified in the Act. When a specific allegation is made
that the tenant is in arrears, the tenant is given an opportunity to pay or
tender the rent within stipulated time and avoid an order of eviction.
In the
absence of definite allegation of non-payment of rent the tenant is not
expected to meet the case by being called upon to answer the claim. It was held
that a party cannot be granted a relief which is not claimed, if the
circumstances of the case are such that the granting of such relief would
result in serious prejudice to the interested party and deprive him of the
valuable rights under the statute. In an action by the landlord the tenant is
expected to defend only the claim made against him and if a cause of action
arises to the landlord on the basis of the plea set up by the tenant, in such
action, it is necessary that the landlord seeking to enforce that cause of
action in the same proceedings must do so by amendment or may have recourse to
separate proceedings to entitle the landlord to relief on the basis of such
cause of action. The principle that the court is to mould the relief taking
into consideration subsequent events is not applicable in such cases.
A plea
taken by the defendant in written statement can itself be made a ground for
allowing relief to the plaintiff subject to well known limitations. The plea
taken in the written statement should by itself be enough as furnishing a
ground for relief to the plaintiff; the plea taken by the defendant does not
stand in need of any further pleadings being joined by the party; an issue is
framed and put to trial unless the facts of the case show that the parties
actually went to trial fully alive to the real issue between them and had
opportunity of adducing evidence, that is, to put it in other words, the
parties know that the plea taken in the written statement too was subject
matter of trial and could form basis for relief to the plaintiff. In such case,
though the pleadings may be lacking or there may be failure to frame an issue
or a specific issue, the applicability of the law laid down by (1956) SCR 451
would be attracted.
What
amounts to denial of title, and whether such denial is bona fide or not, are
the questions to be determined in the facts and circumstances of each case. As
a general rule the vulnerability of denial of title by the tenant shall be
tested by reference to rule of estoppel contained in Section 116 of the
Evidence Act which estoppes the tenant from denying the title of the landlord
at the commencement of the tenancy and the estoppel continues to operate so
long as the tenant does not surrender possession over the tenancy premises to
the landlord who inducted him in possession. The tenant is not estopped from
denying the title of the landlord if it comes to an end subsequent to the
creation of the tenancy nor is he estopped from questioning the derivative
title of a transferee of his landlord. However, the rule of estoppel contained
in Section 116 of the Evidence Act is not exhaustive. To operate against the
tenant as providing a ground for eviction under Section 10 of the Act a mere
denial of the title of the landlord is not enough; such denial has to be 'not
bona fide'. 'Not bona fide' would mean absence of good faith or non genuineness
of the tenant's plea. If denial of title by the tenant is an outcome of good
faith or honesty or sincerity, and is intended only to project the facts
without any intention of causing any harm to the landlord it may not be 'not
bona fide'. Therefore, to answer the question whether an assertion of denial of
landlord's title by the tenant was bona fide or not, all the surrounding
circumstances under which the assertion was made shall have to be seen. The
counter highlights the factum and contents of notice by the Municipal
Corporation served on the tenant, reproduced in the earlier part of this
judgment and the reaction of tenants to the threat coupled with temptation held
out by Corporation.
This
notice by Municipal Corporation states the tenants having informed the
Municipal Corporation that they were in possession of the premises; that they
had agreed to pay to the Corporation the lease amount which was presumably in
arrears on account of non-payment by their landlords (i.e. the respondents);
that the Municipal Corporation threatened the tenancy premises being subjected
to public auction if the arrears were not cleared. This notice is by reference
to letter dated 26.3.1993 sent by the tenants to the Municipal Corporation
which is not available on record. The landlords on whom lay the burden of
proving availability of the ground of eviction took no steps for the production
of this letter. The contents of the letter would have provided vital evidence
relating to the nature and manner of denial of title by the tenants and the
bona fides of denial could have been inferred. The High Court in its judgment
has made a reference to "a series of attempts to deprive the landlords of
their lawful rights" by tenants. The High Court appears to have taken into
consideration some other documents referable to some other litigation between
the parties which documents, in our opinion, could not have been taken into
consideration unless tendered in evidence and brought on record consistently
with procedural law governing trial of civil cases. There is yet another error
committed by the High Court. So far as the additional counter and contents of
the notice by Municipal Corporation to the tenants are concerned we do not
think that a case of denial of title is made out. In any case it cannot be
considered to be 'not bona fide'. The tenants have stated that the ultimate
owners of the property were the Municipal Corporation and they had agreed their
willingness to pay rent to the Municipal Corporation under threat of eviction
solely for the purpose of protecting their own possession over the premises.
They have neither disowned the title of their own landlords at the inception of
the tenancy nor have set-up any title in themselves nor attorned in favour of
the Municipal Corporation by voluntarily entering into direct tenancy with the
Municipal Corporation by-passing their own landlords. We are therefore clearly
of the opinion that no case of eviction on the ground of "tenants' denial
of landlords' title "not bona fide" is made out.
For
several reasons, we are of the opinion that a decree on the ground of denial of
landlord's title by tenant and such denial being not bona fide could not have
been a ground for directing eviction of tenant in the present case. Firstly,
the application for eviction filed by the landlord does not plead such a cause
of action, setting out material facts and as providing a ground for relief of
eviction. The plea taken by the defendant-tenants in their additional counter
does not by itself amount to denial of title so as to render them vulnerable to
eviction by attracting applicability of Section 10(2)(vii) of the Act. The
basic question was whether the landlords themselves treated the plea taken by
the tenants in their additional counter as denial of their title and if that be
so the landlords should have amended their application for eviction
incorporating the averment that the said additional counter amounted to denial
of title of the landlords and such denial was not bona fide. Thereupon the
tenants would have had an opportunity of explaining the facts and circumstances
in which the additional counter, alongwith the pleas raised therein, came to be
filed and if that amounted to denial of landlords' title then how did they
propose to justify such denial as bona fide. Such pleas could have been subject
matter of trial and evidence adduced by the parties followed by expression of
opinion by the Controller as to whether a ground for eviction was made out or
not. Before the Controller none of the parties were alive to the fact that
alleged denial of title by tenants could possibly be clicked by the landlords
as a ground for eviction.
The
Appellate Authority for the first time formulated a point at issue touching
this ground during the course of its decision and yet held in favour of the
tenants holding that such denial was bona fide. If at all the Appellate
Authority was inclined to frame an issue then it ought to have been tried on
the lines laid down in Order 41 Rule 25 of the Code of Civil Procedure. The
High Court, as already stated, shifted the emphasis and treated the denial of
title by tenant as primary ground for eviction and proceeded to decide the
same. Thus what was not in issue before the trial Court at all became the core
issue on which the High Court has founded its decision. This is not only violative
of the established procedure for civil trials but also violative of principles
of justice and fair play. The tenants have been certainly prejudiced in their defence
and, therefore, availability of that ground for eviction of tenants in the
present proceedings cannot be sustained.
Secondly,
what has been done by the Appellate Authority and the High Court does not also
fit in the scheme of the Act in so far as this ground is concerned. An
application for eviction of tenant has to be filed before the Controller for a
direction in that behalf. Eviction may be sought by the landlord on the
singular ground of the tenant having denied the title of the landlord or
coupled with other grounds.
In
such an application it is the Controller who will decide whether such denial or
claim was bona fide or not. If the finding of the Controller is that the denial
or claim by tenant was not bona fide, the Controller shall make an order
directing the tenant to put the landlord in possession of the building.
However, if the Controller does not find the denial or claim to be not bona
fide he shall deny the landlord's claim for eviction by making an order
rejecting the application. Such finding and rejection of landlord's application
would not debar the landlord from approaching the Civil Court for establishing
his title.
By
having regard to second proviso to sub-section (1) of Section 10 of the Act,
the bar on the jurisdiction of Civil Court stands lifted and the landlord
becomes entitled to sue for eviction of the tenant in a Civil Court enabling
such Civil Court to pass a decree for eviction on any of the grounds on which
the Controller could have directed eviction under Sections 10, 14 or 16,
notwithstanding the opinion formed by the Civil Court whether the denial of
title by the tenant had entailed forfeiture of the lease and notwithstanding
the finding of the Civil Court that the claim of permanent tenancy was
unfounded. This is how any conflict of jurisdiction between Civil Court and
Controller can be avoided by construing Section 10(2)(vii) and Section 10(1)
second proviso homogenously and as part of one scheme. The legislative intent
appears to be that denial of title can be decided by the Controller for the
limited purpose of finding out whether a ground of eviction is made out but the
questions of title should be left to be determined by the Civil Court. Once a
question of title has arisen between a landlord and a tenant and such dispute
is bona fide, the doors of Civil Court are let open to the landlord and therein
adjudication, on grounds of eviction otherwise within the domain of Controller,
is also permitted so as to avoid multiplicity of suits and proceedings. All the
disputes between landlord and tenant would be settled in one forum and the need
for prosecuting `two separate proceedings before two fora would be eliminated.
On the
pleadings and the material placed before us we cannot hold that the tenants had
denied the title of their landlords and whatever they had stated in their additional
counter was a denial 'not bona fide' so as to render them liable for a
direction to deliver possession to the landlords. In any case the present one
is not a fit case where the landlords could have been allowed relief on this
ground without making requisite averments by amendment in the plaint. We make
it clear that this finding shall, however, be treated as confined to the facts
of this case and would not preclude recourse to such remedy as may be available
to the landlords under the law and shall also not inhibit a competent court
seized with trial of such an issue to arrive at a different finding based on
the pleadings and material brought before it.
The
next question is whether the tenants by non-payment of rent for one or two
months can be said to have committed 'wilful default'. It was not disputed at
the hearing that simply non-payment of rent by the tenant is not enough; there
should be a 'wilful default' so as to make out a ground for eviction under the
Act. The expression wilful default as employed in Section 10(2) of the Act came
up for the Pattabiraman etc.etc. (1985) 1 SCC 591. After dealing with all the
relevant aspects touching the expression and the setting in which the
expression has been employed in the Act, this Court held "Thus, a consensus
of the meaning of the words "wilful default" appears to indicate that
default in order to be wilful must be intentional, deliberate, calculated and
conscious, with full knowledge of legal consequences flowing therefrom. Taking
for instance a case where a tenant commits default after default despite oral
demands or reminders and fails to pay the rent without any just or lawful
cause, it cannot be said that he is not guilty of wilful default because such a
course of conduct manifestly amounts to wilful default as contemplated either
by the Act or by other Acts referred to above." The course of conduct
prevailing between the parties for collecting rent is one of the relevant
factors. If the landlord has been accepting payments made in lumpsum for quite
a long time and in a situation where the landlord had consented to collect rent
for two to three months at a time, non-payment of rent for some little time
cannot constitute wilful default, is the view taken by this Court in In the
case before us we have the landlord's own statement that rent was being
collected from the tenants by the landlords once in two months. Then there is
either the absence of notice or a doubt about the service of notice on the
tenant from the landlords demanding payment of rent. Additionally there are the
facts that a sister of landlord was pressurizing the tenants to make
apportionment of rent in her favour and the Municipal Corporation was holding
out threat of eviction if arrears as to premises were not directly paid to it.
These two events could have reasonably caused a wavering in the mind of tenants
to whom to pay. In this state of the facts non-payment of rent for one month in
respect of one of the premises and for two months in respect of the other
cannot be enough to brand the tenants as 'wilful defaulters'.
For
the foregoing reasons no case for eviction of the tenants is made out either on
the ground of denial of title 'not bona fide' or on the ground of tenants
having committed wilful default in payment of rent. Petitions for eviction are
liable to be dismissed.
However,
it has been brought to our notice that there are several litigations pending
between the parties. One of them, relevant for our purpose, is proceedings for
fixation of fair rent. The rate of rent in the present proceedings have been
found by the Appellate Authority and the High Court to be at Rs.1,000/- and
4,000/- respectively in respect of the two Doors. The Rent Controller has found
the fair rent of the premises to be still higher and the Appellate Authority
has further enhanced the rate of rent in proceedings for fixation of fair rent
applicable to the premises. The tenants have filed civil revisions in the High
Court alleging the fixation of fair rent to be on higher side.
To
give a quietus to the dispute as to the rate at which the tenants should pay
the rent of the premises we deem it proper to direct that the tenants shall
remain liable to pay rent at the rate of Rs.1,000/- per month in respect of
Door No.264 and at the rate of Rs.4,000/- per month for Door No.244 for the
period for which contractual rate of rent applies. They shall also remain
liable to pay fair rent as determined in the proceedings relating to its
fixation as and when they achieve a finality. So long as the proceedings for
determination of fair rent do not achieve a finality the tenants must comply
with the interim order dated 11.1.1999 whereby this Court directed the tenants
deposit rent at the rate of Rs.13,331/- in respect of Door No.244 and at the
rate of 1,000/- per month in respect of Door No.264 with effect from 20.7.1998.
The tenants, to be entitled to continue in possession of the premises, must
clear all the arrears of rent within an appointed time and then pay regularly,
month by month, the rent which is legitimately due and payable by them.
For
the foregoing reasons the appeals are allowed and the petitions for eviction
are directed to be dismissed. In view of the facts relating to the controversy
as to the rate of rent noticed hereinabove, it is directed that the tenants
shall within a period of two months from today clear the arrears of rent
calculated at the contractual rate for the period commencing January 1989 in
respect of Door No.264 and commencing from February 1989 in respect of Door
No.244 and expiring with 19.7.1998 and for the subsequent period from 20.7.1998
as per the direction made by this Court on 11.1.1999. Either party may move an
application to the Rent Controller for the purpose of deciding if the arrears
of rent stand cleared as above and to record a finding in that regard. The
tenancy shall continue if the arrears are cleared as directed hereinabove. Once
the arrears have been cleared, the tenants shall then continue to pay or tender
the rent month by month, as directed by this Court by its interim order dated
11.1.1999, until determination of fair rent achieves a finality. Once that
order becomes final it shall also be complied within a period of two months
thereafter. If the tenants commit default thereafter they shall be liable to be
evicted by the Rent Controller on an application being made by the landlords in
this behalf. The appeals stand disposed of accordingly. Looking at the nature
of the controversy arising for decision we leave the parties to bear their own
costs throughout.
I.A.
Nos.33-36 of 2001 Hemlata Mohan, the applicant in these IAs seeks her impleadment
in these proceedings submitting that on the basis of the Will dated 30.1.1935
executed by her grand-father she is one of the landlords entitled to
apportionment of rent. A suit for establishment of her title and share in the
property is pending in Madras High Court registered as Civil Suit No.452 of
1988.
I.A.
Nos. 41 to 44 of 2001 These applications are filed by Municipal Corporation of
Chennai seeking its impleadment in the proceedings alleging that the two
premises, Door Nos.244 and 264, subject-matter of litigation in these
proceedings are owned by it and therefore it needs to be impleaded as party in
these appeals.
Both
the sets of applications raise such controversies as are beyond the scope of
these proceedings. This is a simple landlord- tenant suit. The relationship of
Municipal Corporation with the respondents and their mutual rights and
obligations are not germane to the present proceedings. Similarly, the question
of title between Hemlata Mohan and the respondents cannot be decided in these
proceedings. The impleadment of any of the two applicants would change the
complexion of litigation and raise such controversies as are beyond the scope
of this litigation. The presence of either of the applicants is neither
necessary for the decision of the question involved in these proceedings nor
their presence is necessary to enable the court effectually and completely to
adjudicate upon and settle the questions involved in these proceedings. They
are neither necessary nor proper parties. Any decision in these proceedings
would govern and bind the parties herein. Each of the two applicants is free to
establish its own claims and title whatever it may be in any independent
proceedings before a competent forum. The applications for impleadment are
dismissed.
J.
( R.C.
LAHOTI ) J.
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