D.V. DOMA SAH Vs. N.C. BALASUBRAMANIAN

JUDGEMENT

(1.) This is a Civil Revision Petition against an order of the Appellate Authority -cum Subordinate Judge, Kancheepuram, allowing an appeal against the order of the Rent Controller in R.C.O.P. No.27 of 1973, directing the eviction of the tenant from the premises in his occupation. The landlord who is the revision petitioner herein filed a petition for eviction on the ground of wilful default in the payment of rent and requirement of the building for his own use and occupation, as the building he was residing in and which was once a joint family property had been allotted to one of the sons of his brother. On the date of the petition, the tenant was in arrears for the period from 1st October 1972 to 31st March 1973. The contention of the tenant was that on account of the death of a child of his in November 1972, and the confinement of his wife in December 1972, he was unable to pay the rent; that subsequently the bill collector demanded property tax from him in March 1973 and that he paid the same after receiving an occupier's notice and that the balance of the rent he sent by money order was refused by the landlord. The contentions of the tenant were rejected by the Rent Controller and eviction was ordered. However, the learned Appellate Authority was of the opinion that the death of a child in the month of November 1972 and the birth of another child in the month of January 1973 justified the tenant failing to pay the rent. It would appear that on account of pressure from his nephew who had been allotted the joint family house, the revision petitioner had to vacate and go over to an old and dilapidated house which also had been allotted to his share and which certainly is unfit for occupation and use as a human dwelling. This ground has been clutched at by the learned Appellate Authority to refuse the right of the landlord to occupy a building of his own. The judgment of the learned Appellate Authority cannot be sustained. The fact that the child died may be a reason for the tenant failing to pay the rent for that month or even the next month and cannot justify his failure to pay the rent for a period of six months. The birth of a child is always celebrated as a gala occasion and that cannot be a reason for the tenant feeling any mental depression and refusing to pay the rent or failing to pay it. The learned Appellate Authority has certainly caught the landlord between the horns of a dilemma and has come to the conclusion that extreme sorrow as in the case of bereavement and exhilaration as in the case of the birth of a new child can both constitute sufficient grounds for not paying the rent. I am afraid that this is certainly not a very judicial view to take. If the failure to pay the rent for six months is not a wilful default, I do not see what else can be called a wilful default. It would appear from the evidence on record that this is not the first occasion on which the tenant had committed such a default; on an earlier occasion he had accumulated the rent payable for several months and had paid the rent in a lump sum namely, a sum of Rs. 2665 in the year 1972 after disposing of his property. The learned Rent Controller has observed that 'further more it is also admitted by R.W.1 that he was in arrears of rent and that amount was due to the petitioner and that he paid the sum of Rs. 2665 in the year 1972 after disposing of his property. So the very admission of R.W.1 would only show that he is not regular in payment of rent in respect of the petition -mentioned premises. Furthermore, R.W.1 also admitted in the later part of his evidence that on 5th March 1973 he was due a sum of Rs. 250, being the arrears of rent in respect of the petition -mentioned premises.'

(2.) The rent for the building is Rs. 50/ - per mensem. If a tenant who is in arrears of rent to the tune of Rs. 2665 cannot be said to be a chronic defaulter there is no meaning for the word 'defaulter'. This aspect of the case has not been considered by the learned Appellate Authority. The learned Appellate Authority seems to have been carried away by an overwhelming sympathy for the tenant. There is no doubt about the fact that the tenant, namely, the respondent herein has committed wilful default in the payment of rent and that he is a chronic defaulter and on this ground alone he is liable to be evicted.

(3.) It is also not in dispute that after the petition for eviction was filed, the revision petitioner had to vacate the house which was originally the joint family house and has gone to reside in another building. This building, according to the petitioner, is an old and dilapidated building unfit for occupation. Therefore, he is entitled to occupy the building in question. The requirement of the building in question, for the own use of the revision petitioner is also bona fide. In the circumstances, the judgment of the learned Appellate Authority is set aside and the order of eviction passed by the learned Rent Controller is restored. This revision petition is allowed accordingly. No costs. Mr. R. Srinivasavaradhan, learned counsel for the respondent, requests that this court may direct the revision petitioner to grant a lease of the building bearing door No. 100 to the respondent after it is repaired. I am not aware of any provision in the Tamil Nadu Buildings (Lease and Rent Control) Act which empowers the court to pass such an order. However I commend the request of the learned counsel for the respondent to the revision petitioner for consideration with sympathy and compassion. Time for vacating the building is six months on condition that the respondent should pay the entire arrears to the revision petitioner due till date, if any, within one month from this date and should continue to pay the rent every month in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, and on default of either of the conditions, he shall be liable for eviction without any further directions from this court.