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JEAN MARE DANIEL BISCH V/S LARCHER ANTONIE MARIE JULES DESIRE & ANOTHER, decided on Tuesday, March 15, 2011.
[ In the High Court of Madras, C.R.P (NPD) No.2003 of 2009 & M.P.No.1 of 2009. ] 15/03/2011
Judge(s) : S. TAMILVANAN
Advocate(s) : Sumithra, R. Subramanian. R. Krishnamurthy, Senior Counsel, R1 M/s. Sai, Bharath and Ilan.
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  "2011 (2) MWN(Civil) 556"  







    Pondicherry Buildings (Lease and Rent Control) Act 1969 - Section 10 (2) (i) -     (Prayer: Civil Revision Petition filed against the Judgment and Decree dated 29.04.2009 made in R.C.A.No.15 of 2008 on the file of the Rent Control Appellate Authority / III Addl. District Judge Puducherry confirming the order dated 10.08.2007 made in R.C.O.P.No.23 of 2006 on the file of the Rent Controller / Principal District Munsif Puducherry.)1. This Civil Revision Petition has been filed against the Judgment and Decree dated 29.04.2009 made in R.C.A.No.15 of 2008 on the file of the Rent Control Appellate Authority / III Addl. District Judge Puducherry confirming the order and decretal order dated 10.08.2007 made in R.C.O.P.No.23 of 2006 on the file of the Rent Controller / Principal District Munsif Puducherry.2. It is seen that the Rent Control Original Petition was filed by the respondents herein against the petitioner under Section 10 (2) (i) of the Pondicherry Buildings (Lease and Rent Control) Act 1969 (hereinafter referred to as the Act) seeking eviction on the ground of wilful default in paying the rent. After the trial the learned Rent Controller Puducherry by order dated 10.08.2007 allowed the Rent Control Original Petition and ordered eviction of the revision petitioner / tenant on the ground of wilful default. Aggrieved by which the petitioner herein preferred Rent Control Appeal in R.C.A.No.15 of 2008 under Section 23 (1) of the Act. The Rent Control Appellate Authority by Judgment and Decree dated 29.04.2009 confirming the order and decretal order dated 10.08.2007 passed in R.C.O.P.No.23 of 2006 dismissed the appeal directing the appellant / tenant to vacate and hand over the possession of the RCOP premises to the respondents / landlords. Aggrieved by which this Civil Revision has been preferred by the tenant of the premises.3. It is an admitted fact that the petitioner herein had filed HRCOP No.28/2005 against one Irudayanadhan under Section 8 (5) of the Pondicherry Buildings (Lease and Rent Control) Act 1969 seeking permission to deposit the monthly rents for the premises from January 2004 to February 2005 and for future month rents at Rs.1 250/- per month to the credit of said HRCOP. The respondent therein was called absent and set exparte hence based on the evidence of the petitioner / tenant and the exhibits marked by him the said petition was allowed permitting him to deposit the arrears of rent and the rents for the subsequent period into Court.4. In the revision the petitioner has stated that the entire arrears of rent was deposited by him on 25.04.2006 prior to the filing of the R.C.O.P.No.23 of 2006 and hence the Rent Control Appellate Authority should have held that there was no cause of action for filing the R.C.O.P under Section 10 (2) (i) of the Act. However the contention of the respondents / landlords is different and according to them there was wilful default committed by the tenant who is the revision petitioner herein.5. Learned counsel appearing for the petitioner submitted that non-deposit of rent every month after obtaining an order under Section 8 (5) of the Act would not amount to wilful default. According to the revision petitioner the earlier order does not fix any time limit for depositing the rent into Court and the Courts below should have held that the rent is to be paid on or before 10th of very month and that there was no wilful default with the above pleadings the petitioner has prayed for allowing this Civil Revision Petition.6. The point for consideration in the revision is whether the concurrent finding of the Courts below that there was wilful default committed by the revision petitioner / tenant and that the respondents / landlords are entitled to seek eviction under Section 10 (2) (i) of the Act are legally sustainable or not?7. In the counter filed by the revision petitioner before the Rent Controller it has been admitted that the rent control premises was originally leased out by one Mrs.Franz Margueritte and that lease was renewed subsequently and the petitioner had paid rents till December 2003 and payment of rent from January 2004 was refused to be received by the landlords hence the tenant had filed HRCOP 28 of 2005 and that was allowed by order dated 29.11.2005. In the counter in paragraph number 4 (i) the petitioner has admitted that Irudayanadhan was appointed as power of attorney and agent of the owners of the rental premises the respondents 1 and 2 herein and the lease agreement was entered into between the respondents herein and the petitioner on 01.04.1999 whereby the monthly rent payable was agreed at Rs.1 250/-. The said rent was paid without any default to the power of attorney of the respondents Irudayanadhan. Then it was alleged that the power of attorney refused to receive the rent tendered by the revision petitioner on the pretext of some death and dispute in the family of the landlords. Hence the revision petitioner / tenant was forced to send the rent by way of money order. As the power of attorney of the respondents refused to receive the arrears of rent of Rs.22 000/- sent by way of Demand Draft with notice the petitioner herein filed the aforesaid HRCOP 28 of 2005 seeking permission from the Rent Controller under Section 8 (5) of the Act to deposit the arrears of rent from January 2004 to February 2005 to the credit of the said HRCOP. As per order dated 29.11.2005 the revision petitioner was permitted to deposit the rent in to Court accordingly the rent was deposited for the aforesaid period before the Rent Controller. However subsequent rent was not paid hence the respondents filed R.C.O.P.No.23 of 2006 before the Rent Controller under Section 10 (2) (i) of the Act seeking eviction of the petitioner / tenant on the ground of wilful default in payment of rent from January 2004 till the date of filing of the said R.C.O.P on 24.04.2006.8. It is not in dispute that the petitioner / tenant had chosen to pay the rent from January 2004 to April 2006 nearly for two years and three months only on 25.04.2006. It was also brought to the notice by the learned Senior Counsel appearing for the first respondent that the rent was paid for May 2007 only on 12.07.2007 and rent for April 2007 June to August 2007 were not paid in time which amounts to default in paying the rent. However learned counsel for petitioner contended that there was no wilful default in payment of rent.9. In support of the contention learned counsel appearing for the petitioner relied on the following decisions:1. Ashok Kumar vs. Rishi Ram AIR 2002 SC 25202. V.Krishna Mudaliar vs. Lakshmi Ammal 1995 (II) CTC 5403. Chandrasekar vs. M.Lalitha 2010 (7) MLJ 2484. Kannika vs. Krishnasamy 2003 (1) MLJ 2255. Dakaya @ Dakaian vs. Anjani 1996-1-LW 256. A.M.A.Jabbar vs. T.S.Abdul Barl and others 1997 TLNJ 82610. In Ashok Kumar vs. Rishi Ram reported in AIR 2002 SC 2520 while dealing with Section 20 (4) (a) of U.P.Urban Buildings (Regulation of Letting Rent and Eviction) Act (13 of 1972) the Honble Supreme Court has held that since on the date of first hearing of the suit the amount of arrears of rent having been paid it was held as compliance of sub-section (4) of Section 20 of the aforesaid Act.11. In Dakaya @ Dakaian vs. Anjani reported in 1996-1-LW 25 the Honble Supreme Court has held that under Section 10 (2) of the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act 1960 tenant paying the defaulted rent on receipt of notice from the landlord and sending a Demand Draft before filing the suit for eviction was not a wilful default. Similarly the tenant deposited the entire arrears of rent before the Rent Controller after Ejectment Application filed by the landlord was held that the payment of rent was not wilful default under Section 10 (2) (i) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960.12. In Kannika vs. Krishnasamy reported in 2003 (1) MLJ 225 this Court (P.THANGAVEL J) has held that under Section 25 of Pondicherry Buildings (Lease and Rent Control) Act (V of 1969) power to interfere with concurrent finding could be possible only if the findings of the Courts below are illegal irregular or improper in order to render justice otherwise the concurrent finding could not be interfered with by this Court in the Revision.13. In A.M.A.Jabbar vs. T.S.Abdul Barl and others reported in 1997 TLNJ 826 this Court (AR.LAKSHMANAN J) held that as there was payment of entire arrears of rent before the effective hearing the same could not be a wilful default as per Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act and accordingly the tenant was not liable to be evicted.14. In Chandrasekar vs. M.Lalitha reported in 2010 (7) MLJ 348 this Court (G.RAJASURIA J) held that mere default in payment of rent would not constitute wilful default and to constitute wilful default the mental element of wilfulness is absolutely necessary.15. Learned counsel appearing for the revision petitioner / tenant contended that though there was default in payment of rent by the tenant the same cannot be construed as wilful default as contemplated under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Though there is concurrent finding by the Courts below the same is liable to be set aside under Section 25 of the Act.16. Per contra Mr.R.Krishnamurthy learned Senior Counsel appearing for the first respondent submitted that the aforesaid decisions are not applicable to the facts and circumstances of the case since as per the facts narrated in the decisions referred to the rents were paid either immediately after receiving the notice from the landlord or on the first hearing of the R.C.O.P. In the instant case according to the learned Senior Counsel though there was a dispute between the revision petitioner and the landlord and the petitioner had filed HRCOP 28 of 2005 under Section 8 (5) of the Act and got an order after depositing the arrears of rent for few months abruptly he stopped in paying the rent or depositing the same before the Court below. Hence the respondents / landlords filed R.C.O.P.No.23 of 2006 before the Rent Controller. Even after the filing of the R.C.O.P arrears of rent was not paid by the revision petitioner / tenant only after accumulating the arrears of rent five times the revision petitioner paid the same before the Court below which is to be construed as wilful default in payment of rent. After the dispute between the landlords and the tenant there could be no justification for the tenant in not paying the rent or depositing the rent into Court regularly. The learned Senior Counsel contented that in spite of the order obtained by him the petitioner failed to pay the rent properly and arrears of rent was paid for few months subsequent to the filing of the RCOP hence it was only a wilful default in the eye of law.17. According to the learned Senior Counsel the petitioner had knowledge that he had to comply with the order passed by the learned Rent Controller in HRCOP No.28 of 2005 and make regular payments of monthly rent. However the petitioner failed to pay the rent for about five months. Even after filing the Rent Control Original Petition in R.C.O.P.No.23 of 2006 the petitioner / tenant had not chosen to pay the rent immediately but paid only in the month of April 2006 after filing of the RCOP.18. Learned Senior Counsel for the first respondent also drew the attention of this Court to the finding of the Courts below whereby it is seen that even after filing of the R.C.O.P the petitioner / tenant had paid the rent for May 2007 only on 12.07.2007 and for April 2007 and June to August 2007 rents were not paid for September 2006 and October 2006 paid only on 09.11.2006 for January to April 2008 for four months a total rent of Rs.5 000/- was paid on 09.04.2008 for April and May 2010 rents were paid only on 03.06.2010 for August to October 2010 rents were not paid by the petitioner / tenant. The respondents have furnished the aforesaid details by way of filing an additional typed set and a copy was also served on the learned counsel appearing for the revision petitioner. However there is no satisfactory explanation for the delayed payment and for non-payment of rent for August to October 2010. It is a settled proposition of law that default committed in payment of rent by tenant during the pendency of R.C.O.P R.C.A or revision shall also be construed as wilful default as contemplated under the Rent Control Act.19. Mr.R.Krishnamurthy learned Senior counsel drew the attention of this Court to the following decisions in support of the case of the respondents / landlords and submitted that the petitioner / tenant has committed wilful default as contemplated under Section 10 (2) (i) of the Act and hence he is liable to be evicted from the RCOP premises on the ground of wilful default.1. Sarla Goel vs. Kishan Chand 2009 (7) SCC 6582. No.P57 The Pondicherry State Welfare Co-operative Society Limited vs. S.Ramamirtham 2010 (3) CTC 7523. M.Vedapuri vs. O.M.Raj 2008 (5) CTC 4044. Bhoopalan J.V. vs. Rajamanickammal 2007 (2) CTC 47220. In Sarla Goel vs. Kishan Chand reported in 2009 (7) SCC 658 the Honble Apex Court has held as follows :31. It is not in dispute that in the present case according to the landlord this was a case of second default whereas the case of the tenant was that since he has already tendered the rent to the landlord who refused to receive the same he had complied with the provisions of the Act. The respondent tenant had already taken protection under the beneficial legislations of the Rent Control Act once and therefore he ought to have strictly followed the procedure given in Section27 of the Act.The aforesaid decision is squarely applicable to the present case since the revision petitioner / tenant had already taken protection under the beneficial legislation of the Rent Control Act he ought to have scrupulously followed the procedure as stipulated under the Rent Control Act in making regular payments towards the rent without any default. The Honble Apex Court has further held as follows :36. It is not in dispute that the respondent tenant had availed the benefit of Section14 (2) of the Act by its order dated 3-12-2001 passed by the Additional Rent Controller Delhi. Since we have already come to the conclusion that since the respondent tenant has failed to deposit rent in compliance with Section 27 of the Act because in the present case admittedly the appellant landlords had not accepted any rent tendered by the respondent tenant within the time referred to in Section 26 it was the duty of the tenant of deposit such rent before the Rent Controller as prescribed in Section 27 of the Act. Admittedly this step was not taken by the respondent which is mandatory in nature and therefore we must hold that the respondent tenant had committed a second default in payment of rent and is therefore liable to be evicted from the suit premises.As ruled by the Honble Apex Court it is the duty of the tenant to deposit the rent before the Rent Controller even if the landlord refuses to receive the rent otherwise the same has to be construed only as wilful default. After filing of the R.C.O.P and the order passed thereon it is not open to the tenant to raise a defence that the landlord refuses to receive the rent and hence he did not pay the rent and in such circumstances as the said defence is not legally sustainable and the same is only a wilful default in payment of rent.21. In No.P57 the Pondicherry Sate Welfare Co-operative Society Limited vs. S.Ramamirtham reported in 2010 (3) CTC 752 this Court (V.DHANAPALAN J) has held that filing petition under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act by the tenant after two years from the date stating that the landlord had refused to receive the rent and thereafter issuing notice calling for details of bank for depositing rent is nothing but committing wilful default under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act.22. In M.Vedapuri vs. O.M.Raj reported in 2008 (5) CTC 404 this Court (S.TAMILVANAN J) has held that eviction of tenant sought for on the grounds of wilful default own use and occupation of the landlord and acts of waste and ordered on establishing the bonafide on the side of the landlord. It was further held that when there is concurrent finding by the Courts below unless there is any illegality or material irregularity based on perverse finding this Court while exercising Revisional Jurisdiction cannot interfere with the same. It is well settled that the finding could be perverse only if it is against evidence available on record or when the same is not supported by evidence.23. In Murugan R vs. M.O.M.Abubucker reported in 2005 (5) CTC 473 this Court (R.BANUMATHI J) has held that the tenant ought to have followed the procedure as contemplated under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 to deposit the rent into the Court immediately on the ground of landlord refusing the rent sent by money order. Hence without following the procedure as contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 tenant cannot raise a defence that the landlord had refused to receive the rent hence it was held that the tenant was guilty of wilful default as contemplated under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act.24. In Bhoopalan J.V vs. Rajamanickammal reported in 2007 (2) CTC 472 this Court (S.RAJESWARAN J) has held that the tenant should meticulously follow the procedure enumerated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act to deposit the rent and the defence raised by the tenant that the landlord had refused to receive the rent cannot be a defence. Accordingly held that the tenant is not entitled to the benefit under the Tamil Nadu Buildings (Lease and Rent Control) Act as he failed to follow the procedure to deposit the rent into the Court.25. It is a well settled proposition of law that concurrent finding cannot be interfered with by revisional court unless the finding is perverse for which the finding must be against evidence or without the support of evidence. In the instant case it is an admitted fact that the revision petitioner had filed an earlier Rent Control Original Petition in HRCOP No.28 of 2005 seeking an order under Section 8 (5) of the Act to deposit the rent before the Court below and that was ordered by the court. After depositing a lumpsum of arrears of rent to the tune of Rs.22 000/- there was no subsequent payment made by the revision petitioner. Hence the respondents / landlords filed the present Rent Control Original Petition in R.C.O.P.No.23 of 2006 before the Rent Controller on the ground of wilful default in payment of rent from January 2004. Admittedly there was arrears of rent during the that period however the same was paid by the petitioner / tenant only on 25.04.2006 when the R.C.O.P was pending. Subsequently as discussed earlier there was no regular payment by the revision petitioner / tenant. Accordingly there was accumulated arrears of rent for four months from January to April 2008 and a sum of Rs.5 000/- was paid only on 09.04.2008 towards the arrears of rent. Similarly for August to October 2010 rent was not paid till 11.01.2011 on the date of filing the additional typed set by the respondent herein.26. In the instant case admittedly the revision petitioner / tenant has not paid the rent as directed by the learned Rent Controller in H.R.C.O.P.No.28 of 2005 under Section 8 (5) of the Act. It is an admitted fact that the petitioner deposited the rent for a period from January 2004 to March 2006 only on 25.04.2006 after filing of R.C.O.P. He has paid the rents for May and June 2006 only on 18.07.2007 for September and October 2006 paid the rents only on 09.11.2006 for May 2007 paid the rent only on 12.07.2007. It is seen that for January to April 2008 for four months rent of Rs.5 000/- was paid on 09.04.2008 for April and May 2010 paid only on 03.06.2010 and failed to pay the rent for August September and October 2010 till 11.01.2011. The aforesaid factum is not in dispute. Hence it has been clearly established by the respondents / landlords that the revision petitioner / tenant was not regular in paying the rent for January 2004 to April 2006 after filing of the Rent Control Original Petition in R.C.O.P.No.23 of 2006 he paid the rent on 25.04.2006. In the light of various decisions rendered by the Honble Apex Court and this Court it would be construed only as wilful default. The subsequent conduct of the petitioner as discussed in the earlier paragraph would show that the revision petitioner was not regular in making payments towards rent but has committed wilful default as contemplated under Section 10 (2) (i) of Pondicherry Buildings (Lease and Rent Control) Act.27. Though the revision petitioner / tenant had filed the earlier H.R.C.O.P.No.28 of 2005 under Section 8 (5) of the Act he stopped paying rents from January 2004 to March 2006 and only on 25.04.2006 after filing of the R.C.O.P.No.23 of 2006 paid the rent. As contended by the learned Senior Counsel for the first respondent / landlord the decisions cited by the learned counsel for the petitioner are not applicable to the facts and circumstances of this case in view of the earlier H.R.C.O.P and the order passed thereon and the non-payment of rent for months together.28. Even if the landlord refused to receive the rent it is the duty of the tenant to deposit the rent into Court in case it is not possible to credit the same in the bank account of the landlord. Similarly the non-payment of rents or arrears of accumulated rents being paid in lumpsum during the pendency of the R.C.O.P R.C.A and in the Revision shall also be construed as wilful default as contemplated under Section 10 (2) (i) of the Act.29. In the instant case without any justification the petitioner / tenant had paid accumulated arrears of rents in various dates during the pendency of the R.C.O.P R.C.A and in the Revision apart from non-payment of rent for a few months as discussed above in this Revision which amounts to wilful default under Section 10 (2) (i) of the Act.30. It is a settled proposition of law that unless the concurrent finding is perverse this Court cannot interfere with the same in the revision. Similarly it cannot be construed as perverse finding when the concurrent finding of the Courts below is according to law based on evidence available on record. As the finding is based on evidence as per law this Court cannot interfere with the same by way of revisional jurisdiction and therefore I am of the view that the revision is liable to be dismissed.31. In the result this Civil Revision Petition is dismissed. Consequently connected miscellaneous petition is also dismissed. The petitioner / tenant is directed to vacate and hand over the possession of the premises to the respondents / landlords within one month from the date of receipt of a copy of this order. However there shall be no order as to costs.