Holding

A landlord who serves a notice under the Explanation to Section 10(2)(i) must wait two months before filing eviction proceedings; otherwise the tenant cannot be deemed a wilful defaulter.

Summary

The tenant failed to pay rent for June 1983 to November 1984 and the landlord served a notice under the Explanation to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The tenant informed the landlord that the rent had been deposited in other court proceedings, but the landlord filed an eviction suit before the two‑month period prescribed after the notice had elapsed and later withdrew the deposited rent. The High Court decreed eviction, but on appeal the Supreme Court held that the landlord must wait the full two‑month period after serving the notice before initiating eviction, and that the tenant could not be deemed a wilful defaulter, especially since the rent had been deposited and the landlord withdrew it. Consequently, the appeal was allowed, the High Court judgment was set aside, and the eviction petition was dismissed.

Issues considered

Whether the tenant can be held to be a wilful defaulter when the landlord initiates eviction proceedings before the expiry of the two‑month notice period under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

Legislation cited

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960s. 10(2)(i)

Subjects

rent controlevictionwilful defaultnotice periodTamil Nadu Buildings (Lease and Rent Control) Actlandlord-tenant dispute

Judgment

A RAJA MUTHUKONE (D) BY LRS.
v.
T. GOPALASAMI AND ANR.

MARCH 21, 2002

B [R.C. LAHOTI AND RUMA PAL, JJ.]

Rent and Eviction.

Tam# Nadu Buildings (Lease and Rent Control) Act, 1960:
c
S. 10(2)(i); Explanation-Tenant in arrears of rent-Notice claiming
arrears served by landlord-Tenant replying that rent deposited in court in
another proceeding-Landlord filing suit for eviction before expiry of two
months' period and later withdrawing the rent deposited by tenant-High
D Court decreeing the suit-Held, once landlord gave notice to tenant claiming
rent in arrears, he should have waited for a period of two months from date
ofservice of notice and it is only on non-payment or non-tender ofrent within
the period oftwo months that landlord could have initiated eviction proceedings
and then it would have been for the tenant to satisfy the Rent Controller that
inspite of non-payment of rent he was not a defaulter for reasons-Besides,
E in the instant case, before initiation of proceedings, tenant had brought to
~otice of landlord the fact that rent had been deposited in court-Landlord
had also withdrawn the rent so deposited before expiry of said two months-
Therefore, tenant cannot be held to be a defaulter-Judgment of High Court
set aside-Eviction proceedings dismissed.

F S. Sundaram Pillai and Ors. v. V.R Pattabiraman and Ors., (1985] 1 SCC
591, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6929 of
2000.

G From the Judgment and Order dated 3.1.2000 of the Chennai High
Court in C.R.P. No. 1881 of 1996.
·-
Balaji Srinivasan, M.B. Rama Subba Raju and V. Sudeer for S.
Srinivasan for the Appellants.

H 708
~ RAJA MUTHUKONE v. T. GOPALASAMI 709
K.V. Vijay Kumar for the Respondents. A
./
The following Order of the Court was delivered :

A Suit for eviction of the tenant 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 referred to as 'the Act', B
for short) has been ordered to be decreed by the High Court. Feeling
aggrieved thereby the tenant has filed this appeal by special leave.

For our purpose it would suffice to set out only a few relevant facts
which, at this stage, are not in controversy. The rent for the months of
June, 1983 to November, 1984 was not paid by the tenant to the landlord. c
On 7112/1984 the landlord served a notice on the tenant claiming the rent
in arrears as contemplated by Explanation to sub-Section (2) of Section
10. The notice was served. The tenant replied to it. It appears that there
were multiple legal proceedings initiated before different fora, between
the landlord and the tenant which had all stood concluded. Irl two or three
of such proceedings, the tenant had deposited the amount of rent. The
D
dates of deposit are not know but the fact remains that the rent which was
claimed as in arrears, was actually deposited. The factum of rent having
r been deposited in such proceedings was stated by the tenant in his reply
to the notice. However, without waiting for the period of two months, the
landlord filed a petition for eviction of the tenant on 2/l/l 985 before the E
~
Rent Controller. Subsequent to the filing of these proceedings for eviction,
on 18/ l/ 1985 the landlord moved a petition, called the cheque memo,
withdrawing the rent deposited by the tenant in different proceedings and
the amount was also withdrawn.

The short question which arises for consideration is whether in such F
facts and circumstances the tenant can be said to have committed a wilful
default in paying or tendering the rent to the landlord.

According to the learned counsel for the landlord, the tenant was
bound to pay or tender rent to the landlord, month by month, within G
fifteen days of the expirty of each tenancy month and if the tenant had .
.. deposited the rent in certain proceedings, which had already stood concluded,
then he did so af his own peril and he cannot take advantage of such
deposits for purging the default. The submission of the learned counsel
for the tenant is that if the landlord choses to serve a notice claiming the
rent in terms of the Explanation abovesaid, then he must wait for a period H
710 SUPREME COURT REPORTS [2002] 2 S.C.R.

A of two months for payment or tender of rent by the tenant and it is only '--
in the event of latter's failure to pay the rent in the notice period that he
may be considered to be a defaulter. In the event of giving a notice, other
modes of adjudging the tenant a wilful defaulter, except by reference to
the Explanation abovesaid, are excluded.

B The submission of the learned counsel for the tenant finds support
from the Three-Judge Bench decision in S. Sundaram Pillai and Ors. v.
V.R. Pattabiraman and Ors., [ 1985) l SCC 591. Having taken into
consideration the provisions of Section 10(2)(i), and the Proviso and the
Explanation to sub-section (2) Fazal Ali, J., speaking for the majority,
C stated his conclusions as under :

"( l) Where no notice is given by the landlord in terms of the
Explanation, the Controller, having regard to the four conditions spelt
out by us has the undoubted discretion to examine the question as to
whether or not the default committed by the tenant is wilful. If he
D feels that any of the conditions mentioned by us is lacking or that the
default was due to some unforeseen circumstances, he may give the
tenant a chance of locus poenitentiae by giving a reasonable time,
which the statute puts at 15 days, and if within that time the tenant '
pays the rent, the application for ejectment would have to be rejected.
E (2) If the landlord chooses to give two months' notice to the
tenant to clear up the dues and the tenant does not pay the dues
-
"

within the stipulated time of the notice then the Controller would
have no discretion to decide the question of wilful default because
such a conduct of the tenant would itself be presumed to be wilful
default unless he shows that he was prevented by sufficient cause or
F
circumstances beyond his control in honouring the notice sent by the
landlord."

Vide para 63, His Lordship observed:

"Indeed, if the landlord chooses to give two months' notice to his
G tenant and he does not pay the rent, then, in the absence of substantial
and compelling reasons, the Controller or the court can certainly
presume that the default is wilful and order his eviction straightaway...
We are unable to accept the view that whether two months' notice for·•
., payment of rent is given or not, it will always be open to the Controller
H :under the proviso to determine the question of wilful default because
RAJA MUTHUKONE v. T. GOPALASAMI 711

that would render the very object of explanation otiose and nugatory." A
The submission made on behalfofthe landlord that even if two months'
notice for payment of rent is given still it will be open to the Controller under
proviso to determine the question of default, was discarded by Fazal Ali, J.
by placing on record his opinion that such a view, if accepted, would render
the very object of explanation otiose and nugatory. The same submission B
which was expressly discarded in the case of S. Sundaram Pillai (supra) has
been advanced before us and obviously we cannot entertain the same. In the
case at hand, once the landlord gave a notice to the tenant claiming the rent
in arrears, he should have waited for a period of two months from the date
of service of notice and it is only on non-payment of non-tender of rent C
within the period of two months that the landlord could have initiated the
proceedings for eviction on the ground of wilful default and then it would
have been for the tenant to satisfy the Rent Controller that inspite of non-
payment of rent for a period of two months from the date of service of notice,
he was not a defaulter for reasons. In the present case, there is the additional
fact that before the initiation of the proceedings for eviction, the factum of D
the tenant having deposited the rent in the Court, though in the proceedings
which had stood terminated, was brought to the notice of the landlord and the
r landlord having initiated the proceeding for eviction withdrew the amount of
rent and on the date when he sought for withdrawal, a period of two months

- from the date of notice had not expired. In such circumstances, in view of the E
law laid down in the case of S. Sundaram Pillai (supra) the tenant cannot be
held to be a wilful defaulter.

-
For the foregoing reasons, the appeal is allowed. The impugned judgment
of the High Court is set aside and the petition for eviction filed by the
landlord is directed to be dismissed. No order as to costs.
F
R.P. Appeal allowed.