Full Judgment Text
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PETITIONER:
VIJAY AMBA DAS DIWARE & ORS.
Vs.
RESPONDENT:
BALKRISHNA WAMAII DANDE & AIIR.
DATE OF JUDGMENT: 31/03/2000
BENCH:
Syed Shah Mohammed Quadri, S.N.Phukan
JUDGMENT:
PHUKAN. J.
The landlord filed an application under Items (i) and
(ii) of sub-clause (3) of Clause 13 of The Central Provinces
and Berar Letting of Houses and Rent Control Order, 1949
(for short the Order) before the Controller which was
allowed and the controller granted permission to the
landlord to serve the notice of eviction on the tenant. The
appeal was dismissed by the Resident Deputy’ Collector,
Arnravati and the writ petition filed by the tenant was also
dismissed in limine.
The landlord pleaded before the controller that the
tenant was a monthly tenant since 1961 and rent was to be
paid on the first day of every month according to English
calendar. It was also pleaded that the tenant was a
habitual defaulter in payment of rent. The appellant-tenant
pleaded before the Controller that rent was lo be paid as
per his convenience and he was
neither a habitual defaulter nor defaulted in payment
of rent. Both the authorities below on fuels held that it
was a monthly tenancy and also came to the finding that the
tenant was a habitual defaulter and defaulted in payment of
rent. The present appeal is by the legal representatives of
the original tenant.
It has been urged before us that the tenant was
neither a habitual defaulter nor was in arrears of rent.
We quote below items (i) & (ii) of sub=clause(3) of
Clause 13 of the Order:-
"13. (1) - No landlord shall, except with the
previous written permission of the Controller-
(a) - give notice to a tenant determining the leaae or
determine the lease if the lease -is expressed to be
determinable at his option; or
(.?)-"lf.after hearing the parties the Controller is
salisfied:-
"(i; - that on the date of filing the application the
tenant was in arrears of rent for any aggregate period of
three months and that he failed to deposit with the
Controller the amount of arrears ordered to be deposited by
the Controller within such time as may be fixed by him; or
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(ii) - that the tenant is habitually in arrears with
the rent: or
he shall grant the landlord permission to give notice
to determine the lease as required by sub- claused)." ;
Clause 13 of the Order prohibits a landlord from
serving a notice for eviction on the lenant except with the
previous written permission of the Controller and such
permission can be given if’ the landlord can make out any
one ground mentioned in the said Clause. In this appeal
grounds alleged are item Nos. (i) and (ii) of sub-clause
(3) of Clause 13 quoted above.
The word ’habitual’ occurring in item (ii) have not
been defined in the Order.
The meaning to the words "habit’ and "habitually’ as
given in The Law Lexicon (Second Edition) by P Ramanatha
Aiyar’s K :
" Habit - Settled tendency or practice, menial
constitution.’ The word "habit implies a tendency or
capacity resulting from the frequent repetition of the same
acts.- The words by "habit’ and habitually’ imply’ frequent
practice or use."
"Habitual - constant; customary; addicted to a
specified habit."
This Court in Vi.jav Narain Singh Vs. State of Bihar
& Ors. AIR. 1984 SC 1334_ considered the question of
habitual criminal and in paragraph 31 the expression
"habitually’ was explained as follows:-
’The expression ’habitually’ means ’repeatedly’ or
’persistendy". It implies a thread of continuity stringing
together similar repetitive acts. Repeated, persistent and
similar, but not isolated, individual and dissimilar acts
are necessary to justify an inference of
habit....................... .,,"
Therefore, the expression ’habitual" would mean
repeatedly or persistently and imphes a thread of continuity
stringing together similar repeated acts. An isolated
default of rent would not mean that tenant was a habitual
defaulter.
As directed by this Court the application and written
statement filed by the parties before, the Controller have
been furnished. We find from the pleadings that there was a
civil suit filed by one Smt. Ganga Bai in which the tenant
was a party and the tenant was directed to pay the rent
directly to the court. Subsequently, tenant was informed by
Smt. Ganga Bai that. tenant could pay The rent directly to
the landlord as the amount to be recovered by her was fully
satisfied.
It has been urged on behalf of the tenant-appellant
that the right to collect rent by the landlord was suspended
by the above order of the civil court and. therefore,
non-payment of rent by the tenant to the landlord cannot be
treated as default.
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The civil court did not restrain the tenant from his
legal liability to pay rent regularly at the end of the
month and he was only directed to
deposit the rent in the court instead of paying to the
landlord. We are. therefore, unable to accept the
contention that the tenant. had no legal liability to
deposit, rent regularly in the court till the amount was
fully satisfied.
In the application before the Controller it was
alleged by the landlord that the tenant was in arrears of
rent .from 1.4.76 to 31.12.83 for about 93 months amounting
to Rs. 5.766/- and that the tenant deposited Rs. 4,000/-
in civil court in view of the above order by four
installiments leaving balance of RS. 1,766,’’-.. In the
written statement the above averments have not been denied
but plea taken was that rent was to be paid as per the
convenience of the tenant which was rejected by ’both the
auhorities below.
The above manner of depositing rent in installments
clearly shows that the tenant "repeatedly and continuously
defaulted in payment of rent and he was, therefore, habitual
defaulter. He was also in arrears of rent as he did not pay
the mil amount of rent.
Our attention has been drawn to the decision of this
Court in J; Jermons u Vs. Allammal and others 1999(7) SCC
382. In that case the landlord was served with a
prohibitory order by the Tax Recovery Officer for receiving
rent and the tenant was also prohibited and restrained from
making payment of a certain debt and from that date
the tenantl stopped payment of rent. This Court held that
as the tenant was prohibited and restrained from paving rent
he did not commit willful default in payment of rent but
that is not .so in the present appeal as the tenant was not
prohibited for making payment of rent.
For what has been stated above we hold that
authorities below rightly held that the appellant-tenant not
only defaulted in payment of rent but he was a habitual
defaulter.
In the result, the appeal has no merits and
accordingly it is dismissed. Parties bear their own costs.