IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.01.2017
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA C.R.P.(NPD) No.4113 of 2015
and M.P.Nos.1 to 4 of 2015
K.Sekar ... Petitioner Vs.
P.Harikrishnan ... Respondent
Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 against the judgment and decree dated 24.06.2015 made in R.C.A.No.6 of 2014 on the file of Subordinate Judge, Arakkonam confirming the order of eviction dated 27.06.2014 made in RCOP.No.3 of 2012 on the file of the Rent Controller cum District Munsif, Arakkonam.
For Petitioner : Mr.G.Jeremiah For Respondents : Mr.P.R.Raman
O R D E R
Civil Revision Petition is filed challenging the judgment and decretal order dated 24.06.2015 passed in R.C.A.No.6 of 2014 on the file of the Subordinate Judge, Arakkonam, confirming the fair and decretal order dated 27.06.2014 passed in RCOP.No.3 of 2012 on the file of the Rent Controller cum District Munsif, Arakkonam.
2. The respondent as a petitioner-landlord filed a petition in R.C.O.P.No.6 of 2014 for eviction on the ground of wilful default and also owner's occupation. The respondent-Tenant is admitting the landlord tenancy relationship, but disputing that there is no default in payment of rent that too wilful default and also stated that requirements for personal occupation is not bona fide. The Rent controller, after considering the oral and documentary evidence, ordered eviction on the ground of wilful default and also owner's occupation, against which the tenant/revision petitioner herein preferred R.C.A.No.6 of 2014 and the Rent Controller Appellate Authority passed the fair and decretal order confirming the order of eviction on both grounds, against which, the present revision has been preferred by the tenant.
3. Heard Mr.G.Jeremiah, learned counsel appearing on behalf of the petitioner and Mr.P.R.Raman, learned counsel appearing on behalf of the respondent.
4. Learned counsel for the petitioner would submit that as far as wilful default is concerned, there is no pleading, for which period the tenant/petitioner has committed a wilful default. He further submitted that the petitioner herein, in his counter, has categorically stated that there is no default in payment of rent, that too, wilful default. In this regard, the learned counsel relied on a decision of the Supreme Court reported in (2000) 3 SCC 282 (Chordia Automobiles Vs.S.Moosa and others) and submitted that the factum of default in payment of rent, that too, wilful default, was not considered by the Rent Controller as well as Rent Control Appellate Authority. Hence, he prayed for setting aside the eviction passed on the ground of wilful default.
5. The second contention raised by the learned counsel for the petitioner is that the landlord sought for eviction on the ground of owner's occupation, but the demised property is a commercial building. He further submitted that the landlord has not pleaded that except this building, no other building is available to him. But he has filed this application under Section 10(3)(a)(i) as a residential property. He has also relied upon a decision of this Hon'ble Court reported in 2002-2-L.W. 611(S.V.Janardanam and another Vs.D.Kivraj Sowkar and 2 others) and submits that he ought to have proved that he is not in possession of any other property except this property and only then he is entitled to claim the property for personal occupation. Since the landlord has not proved the same, the learned counsel prayed for setting aside the order passed by both the Courts below.
6. Resisting the same, the learned counsel for the respondent would submit that in his pleading, he has categorically stated that the petitioner was due for rental arrears from the date of filing of the suit in O.S.No.94 of 2009, which was filed for permanent injunction restraining the landlord from evicting the tenant from the shop, except by due process of law. The actual arrears of the rent due by the respondent-tenant is Rs.6500/-. He further submitted that it was confirmed by RW1 in his oral evidence, where he himself admitted that after filing of the suit in O.S.No.94 of 2009, he has defaulted in payment of rent. P.W.1 in his oral evidence has admitted that he has defaulted in payment of rent. That factum was considered by both the Courts below. Hence, the learned counsel prayed for dismissal of the Civil Revision Petition.
7. The learned counsel for the respondent would further submit that in order to prove his requirement for owner's occupation is bonafide, the landlord had examined P.W.1 and P.W.2. He would further submit the misquoting of wrong provision of law is not a ground for dismissal of the application. However, when he was in the witness box, nothing has been culled out. He further submitted that his son has also put up a mechanic shop, which was leased out to one other tenant. Hence, the demised premises is required for personal occupation. So, both the Courts below have clearly held that petitioner has committed wilful default in payment of rent and his requirement for personal occupation is bona fide and ordered for eviction. Hence, the learned counsel for the respondent prays for dismissal of the Civil Revision Petition.
8. Considering the rival submissions and on a perusal of the typed set of papers placed before this Court, the following points are to be considered:
(1) Whether both Courts are right in holding that, the petitioner has committed a default in payment of rent?
(2) Whether both the Courts below have correctly held that the request for personal occupation is bona fide?
(3) Whether the eviction ordered by both the Court is sustainable? and
(4) To what relief, the petitioner is entitled to?
9. Point No.1: The tenancy relationship and the monthly rent of Rs.300/- are not disputed. The only point to be decided is whether the petitioner/tenant has committed default in payment of rent, that too, wilful default. At this juncture, it would be appropriate to consider the decision relied on by the learned counsel for petitioner reported in (2000) 3 SCC 282 [Chordia Automobiles Vs. S.Moosa and others] , wherein the term 'default' and 'wilful default' has been clearly defined. The learned counsel has relied up on Paragraph 9 of the judgment which is incorporated hereunder:
"In S.Sundaram Pillai V. V.R.Pattabiraman this Court had occasion to consider the word "wilful default" under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26) "21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' - deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' - Either a consciousness of negligence or breach of duty or a recklessness in the performance of a duty.
22. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In words and phrases, Vol.11- A(Permanent Edition) at p.268 the word 'default'has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something reqired. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:
'Wilful' - intentional; not incidental or involuntary;
- done intentionally, knowingly and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
p.296 - 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:
governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.
24. The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus: to fail to fulfill a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
25. In Black's Law Dictionary (Fourth Edn.), at P.1773 the word 'wilful' has been defined thus:
'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with subborn purpose, but not with malice.
The word 'reckless' as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'.
26. 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."
10. Considering the above citation along with the deposition of R.W.1, it is seen that R.W.1 in his deposition has candidly admitted that after filing of the suit in O.S.No.94 of 2009, he has defaulted in payment of rent. He further contended that even on the date of examination before the learned Rent Controller, he is liable to pay the rent arrears to the landlord. This shows that, after filing of application for eviction of tenant on the ground of wilful default, the tenant has not paid the rent due regularly, which shows that he knows the legal consequences for non- payment of rent, which amounts to wilful default as per the dictum laid down in S.Sundaram Pillai V. V.R.Pattabiraman reported in 1985(1) SCC 591. Hence, I am of the view that both Courts below had rightly held that default has been committed, that too, wilful default in payment of rent even after filing of petition. Hence, the order passed by both the Courts below for ordering eviction on the basis of wilful default, is sustainable and it does not need any interference. Thus point no.1 is answered accordingly.
11. Point No.2: The Court has to decide as to, whether the requirement for personal occupation is bona fide?
The petitioner in his affidavit stated that because of his ailment, he is unable to do his security work, he wanted to put up a bunk shop. Hence, he has filed the application for eviction. It is pertinent to note that the petitioner/tenant is carrying on tailoring business and so, it is a commercial building. Though the landlord had quoted the wrong provision of law, the same will not be a ground for dismissal. It is also a well settled dictum of the Hon'ble Apex Court that mere quoting of wrong provision of law cannot be a ground for dismissal. But both the parties are aware of the pleading, filed counter, deposed evidence and advanced argument stating that the demised premises is a commercial building and it was sought for by the landlord for commercial purpose. In such circumstances, I am of the view that mere quoting of wrong provisions of law is not a ground for dismissal of this application.
12. It is also pertinent to note that the property is sought by the landlord for personal occupation for running a bunk shop. Hence, I am of the view that he is entitled for the same. Further, though the respondent has filed a counter affidavit, he had not specifically denied the same. So, considering the evidence of P.W.1 and P.W.2, I am of the view that his son is running a mechanical shop and now, the landlord wanted the demised premses for his own occupation. So, I am of the considered view that the requirement of the demised premises by the landlord for personal occupation is bonafide. The said factum was rightly considered by both the Courts below and I do not find any irregularity or illegality in the said order. Thus, point no.2 is answered accordingly.
13. Point 3 & 4: In view of the answer given in point No.1 & 2, eviction order passed by the learned Rent Controller cum District Munsif Court, Arakkonam and confirmed by the learned Appellate Authority
Subordinate Judge, Arakkonam is sustainable.
R .MALA. J.,
rm
14. In view of the answer given to point nos.1 to 4, the order of eviction passed on the ground of wilful default and owner's occupation is sustainable and the order passed by both the Courts below is hereby confirmed. Consequently, the Civil Revision Petition is dismissed. Three month's' time is granted for eviction and to hand over the possession. Consequently, Connected Miscellaneous Petitions are also closed. No costs.
03.01.2017
Index : Yes/No Internet: Yes/No rm To
1. The Subordinate Judge, Arakkonam.
2. The District Munsif, Arakkonam.
C.R.P.(NPD) No.4113 of 2015
and M.P.Nos.1 to 4 of 2015
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