Full Judgment Text
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CASE NO.:
Appeal (civil) 3429-3432 of 1998
PETITIONER:
J.J. LAL PVT. LTD. & ORS.
Vs.
RESPONDENT:
M.R. MURALI & ANR.
DATE OF JUDGMENT: 08/02/2002
BENCH:
R.C. Lahoti & Brijesh Kumar
JUDGMENT:
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
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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
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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
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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
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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
Subbarao Vs. P.V.K. Krishna Rao (Deceased) by LRs., (1989) 4 SCC
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
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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]
Recently in Om Prakash Gupta Vs. Ranbir B. Goyal (Civil
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."
In Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and Ors.
(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
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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
a situation this Court in Hasmat Rai & Anr. Vs. Raghunath Prasad
(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.
Om Prakash & Ors. Vs. Ram Kumar & Ors. (1991) 1 SCC
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.
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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
this Court in Nagubai Ammal & Ors. Vs. B. Shama Rao & Ors.,
(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
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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
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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
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
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months at a time, non-payment of rent for some little time cannot
constitute wilful default, is the view taken by this Court in
Premchand Ranka Vs. A. Vasanthraj Khatod & Ors. (1992) 1 SCC
369 and D.C. Oswal Vs. V.K. Subbiah and Ors. (1992) 1 SCC 370.
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,
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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.
(BRIJESH KUMAR)
February 8, 2002