Deciding Authority: The Supreme Court of India
Name of the Judges: R.C. Lahoti & Brijesh Kumar
Date of Judgement: 08/02/2002
Facts: 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 this Court). 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. 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 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. These appeals have been filed by the tenants by special leave feeling aggrieved by the judgment of the High Court.
Judgement:
The first question is 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?
Pursuant to the notice sent by Corporation of Chennai to the tenants it can be concluded 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. The Court is, 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. Also, the Court is 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. 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. 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.
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 consideration of this Court in S.Sundaram Pillai etc. etc. Vs. V.R. 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. In the case, this Court has the landlord’s own statement that rent was being collected from the tenants by the landlords once in two months. 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’.
Decision:
The appeals are allowed and eviction petitions are directed to be set aside.
Sudipta Bhowmick, 4th year, KIIT School of Law
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