N CHANDRAMOHAN Vs. K RAM MOHAN

JUDGEMENT

(1.) With the consent of the learned counsel on either side, the second appeal is taken up for final disposal. When the second appeal was admitted, the following substantial questions of law were framed:

(2.) Mr. N. Vanchinathan, learned counsel appearing for the appellant, relying upon a Division Bench Judgment of the Court (J. Visalakshi Ammal vs T.B. Sathyanarayan, 1996 2 LW 849), would contend that till such time the fair rent fixed by the Rent Controller reaches finality in a manner known to law, the suit filed to recover such arrears of rent would be premature. In other words, according to him, till a finality is reached in the fair rent proceedings, the landlord has no cause of action at all to file a suit for recovering the difference between the contractual rent and the fair rent, treating it as arrears of rent. As already stated, he heavily relies on the judgment referred to above. Heard the learned counsel appearing for the respondent.

(3.) I went through the above referred to judgment carefully. In that case fair rent was fixed at the instance of the landlady. Thereafter, the landlady filed a petition for eviction complaining willful default in payment of rent based on the fair rent fixed earlier. The tenant had taken a defence that the petition for eviction was not maintainable since the fair rent fixed by the Rent Controller was in challenge at his instance before the High Court by way of a revision. The Rent Controller ordered eviction, which was reversed on appeal by the Appellate Authority on the ground that the eviction petition is pre-mature. In 100 Law Weekly Pg.708, the former Chief Justice of this court held that wilful default in payment of rent means agreed rent only and not the fair rent fixed and therefore non-payment of the fair rent fixed would not amount to wilful default in payment of rent. Another learned Judge of this court, who was not inclined to agree with the law laid down in 100 Law Weekly Pg. 708, referred the case for a decision by a larger Bench and that is how the above referred to judgment namely, J. Visalakshi Ammal vs T.B. Sathyanarayan, 1996 2 LW 849 came up for consideration before the Division Bench of this Court. On facts in the above referred to judgment considered by the Division Bench, the order fixing fair rent had also reached finality. In deciding that case on the facts available therein, the Division Bench held that the difference of amount between the fair rent and the agreed rent becomes due atleast from the date the order fixing the fair rent becomes final. In other words, according to the law laid down by the Division Bench in that judgment, the landlord would be definitely entitled to bring a case for eviction of his tenant on the ground of wilful default in payment of rent namely, the difference between the fair rent and the agreed rent, once the order fixing the fair rent becomes final. In my respectful opinion, that judgment must be considered only in the light of the facts available therein. The learned Judges of the Division Bench did not lay down the law that the cause of action to file a suit for recovering the difference in amount namely, between the fair rent and the agreed rent, would also arise only after the order fixing the fair rent becomes final.