KALYANI Vs. G.V. SUBRAMANIAM AND ORS.

JUDGEMENT

(1.) THE tenant, who is in occupation of one room in the ground floor on a monthly rent of Rs. 10, and three rooms, a Varandah, two bath rooms and open space in the ground floor, on a monthly rent of Rs. 155 in door No. 74, Narayana Mudali Street, Madras -1 is the petitioner in these Civil Revision Petitions, arising under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960 as amended by Act 23 of 1973) (hereinafter referred to as the 'Act'). Respondents 1 to 3 in these Civil Revision Petitions are the landlords and there is no dispute regarding this. They in R.C.P. No. 1424 of 1983, filed under S. 10 (2) (i) of the Act, before the Rent Controller (XI Judge, Court of Small Causes) Madras, prayed for an order of eviction against the petitioner from the room in her occupation in the ground floor on the ground that she had committed wilful default in the payment of rent at the rate of Rs. 10 per mensem for 21 months from 1 -5 -1981 to 31 -1 -1983. In the counter filed by the petitioner in that application, she denied having committed wilful default in payment of rent and stated that she had always been ready and willing to pay the entire rent or deposit it before the Court as per its directions and that she had also deposited the entire rent in the branch of the Indian Bank at Kothaval Bazaar to show her bona fides, as the money orders sent by her, had been refused by the landlords. In R.C.O.P. No. 1425 of 1983 filed under Section 10(2)(i) of the Act before the Rent Controller, (XI Judge, Court of Small Causes) Madras the landlords prayed for an order of eviction against the petitioner with reference to the other portions of the building in her occupations on the ground that she had committed wilful default in the payment of rent for a period of 21 months from 1.5.1981 to 31.11983 at the rate of Rs. 155 per mensem. In addition, they also prayed that they required the premises in the occupation of the petitioner as and by way of additional accommodation. The petitioner, in her counter, refuted the claim of the landlords for additional accommodation, and she pleaded that though she had been willing to pay the rents, the landlords evaded to receive the rents and that she is ready and willing to pay the sum of Rs. 3,255 claimed as arrears of rent, either directly to the landlords or deposit it into court as per the directions of the Court.

(2.) BOTH the applications were heard together on common evidence. On a consideration of the evidence, the Rent Controller found that the landlords had not established that the petitioner had committed wilful default in the payment of rents, as claimed in both the petitions, that the bona fide requirement of the landlords of the premises in the occupation of the tenant as and by way of additional accommodation was not established, and, therefore, the landlords are not entitled to an order for eviction against the petitioner as prayed for. On the aforesaid conclusions, R.C.O.P. Nos. 1424 and 1425 of 1983 were dismissed. Aggrieved by this, the landlords preferred appeals in R.CA. No. 331 and 336 of 1985, respectively before the Appellate Authority (VII Judge Court of Small Causes) Madras. On a reconsideration of the entire evidence, the Appellate Authority held that the petitioner had not paid the rents and that she had also not taken any steps whatever to deposit the rent, and, therefore, the petitioner should be held to have committed wilful default in the payment of rent in respect of both the tenancies. However, the Appellate Authority found that the requirement of the landlords on the ground of additional accommodation had not been made out. On the aforesaid conclusions, the Appellate Authority passed an order of eviction against the petitioner with reference to the portions in her occupation. It is the correctness of this order that is challenged in C.R.P. Nos. 2461 and 2528 of 1986.

(3.) THAT leaves for consideration the initiation of the second round of proceedings by the landlords for the eviction of the petitioner in R.C.O.P. Nos. 1016 and 1017 of 1985. In those petitions, the landlords stated that the petitioner had committed wilful default in the payment of rents for the period 1.2.1985 to 31.3.1985 at the rate of Rs. 10 and Rs. 155 per mensem, respectively. It was in these proceedings that the landlords have invoked Section 11 of the Act by filing M.P. Nos. 714 and 715 of 1985 praying for the issue of suitable directions. Though in the counters filed by the petitioner in M.P. Nos. 714 and 715 of 1985, she had denied wilful default in the payment of rent, it is seen from the order passed by the Court on 26.8.1985 that the petitioner did not place any materials before Court to establish that she was not liable to pay the arrears of rent, as claimed, and further that, the petitioner would pay the arrears, provided some time was granted. The Rent Controller, finding that the petitioner had not established that she was not liable to pay the arrears as claimed, granted time to the petitioner to pay the respondents/landlords or deposit into Court the arrears and on her failure to do so, stopped further proceedings and ordered her eviction. What is important is that the petitioner had not established that the arrears of rent, as claimed, were not payable by her. Under those circumstances, the request of the petitioner for time for paying or depositing the arrears, was accepted and an order was passed. On the basis of the available materials, it cannot be said that the Rent Controller was in error in having passed the order stopping the proceedings and directing the eviction of the petitioner, when she did not comply with the earlier order directing the payment or deposit of the arrears of rent, as claimed by the landlords. Therefore, the consequential order passed in R.C.O.P. Nos. 1016 and 1017 of 1985 also cannot be taken exception to. However, learned Counsel for the petitioner contended that the initiation of the second round of eviction proceedings in R.C.O.P. Nos. 1016 and 1017 of 1985, during the pendency of the earlier proceedings in R.C.O.P. Nos. 1424 and 1425 of 1983, was not in order and relied upon the decision reported in Durgai Ammal v. K.T. Mani, (1989) 1 L.W.155. It was also contended that as a consequence thereof, it would follow that M.P. Nos. 714 and 715 of 1985 were not maintainable. On the other hand, learned Counsel for the landlords submitted that proceedings in R.C.O.P. Nos. 1016 and 1017 of 1985 were initiated on the arising of a cause of action subsequent to the filing of the earlier application for eviction and in the absence of any prohibition in the Act, the second round of eviction proceedings were properly initiated and therefore, the filing of applications in M.P. Nos. 714 and 715 of 1985 was perfectly in order. Attention in this connection was also drawn to the Proviso to Section 10(7) of the Act and the decision of Full Bench in K Perumal Chettiar v. v. Muthuswami : (1962) 2 MLJ 218 . Earlier, it has been noticed that R.C.O.P. Nos. 1424 and 1425 of 1983 related to the period 1.5.1981 to 31.1.1983 while R.C.O.P. Nos. 1016 and 1017 of 1985 related to the period 1.2.83 to 31.1.1985. It is thus seen that two applications for eviction in relation to two different tenancies, though in the name of the petitioner, have been initiated by the landlords for different periods. There is no prohibition in the Act against the filing of a second application for eviction with reference to a cause of action arising after the filing of the prior application for the same relief under the Act. Indeed, the proviso to Section 10(7) of the Act clearly recognises that even during the pendency of the prior proceedings initiated for eviction, it would be open to the landlord to file again an application for evicting the tenant on any of the other grounds mentioned in Sub -sections (2) or (3) or (3 -A) of Section 10 of the Act. Considering this provision, the Full Bench in K. Perumal Chettiar v. v. Muthuswami : (1962) 2 MLJ 218 , pointed out that it will be an unwarranted extension of fiction to hold that the landlord should be at a disadvantage by not being able to rely on defaults or necessities which arise subsequent to the filing of the previous application, but before its termination, and if that were so, the consequence would be that so long as, what is ultimately found to be an ill -founded petition by a landlord for eviction of his tenant, is pending (whether before the Rent Controller or the appellate authority or Court of revision) or so long as he is able to delay final disposal thereof, the tenant, could with impunity commit defaults in payment of rent incurring no penalty therefore, and such a construction would have the effect of defeating the express and mandatory provisions of the Act. Dealing with the arguments that no petition for eviction could be filed during the pendency of an earlier one, which is subsequently dismissed, the Full Bench pointed out that argument cannot be accepted as the statutory right under Section 7(2) and 7(3) (now Section 10(2) and (3) of the Act cannot be in any manner be qualified. Referring to the case of wilful default, the Full Bench pointed out, if an application for eviction is filed on the ground of default of payment of rent in a particular month, the landlord can file another application in case there is a default in the next month, as to hold otherwise, would lead to results inconvenient, if not repugnant to the scheme of the Act itself. In view of the authoritative pronouncement of the Full Bench, referred to above, it follows that the second round of proceedings for eviction initiated in respect of wilful default in respect of a subsequent period cannot be held to be not maintainable or that the applications filed therein in M.P. Nos. 714 and 715 of 1985 were not competent. It is necessary, in this connection, to make a brief reference to the decision of the Division Bench in Durgai Ammal v. R.T. Mani, (1989) 1 L.W.155 relied on by the learned Counsel for the petitioner. In that case also, two eviction petitions came to be filed. The earlier one was for the period from 1.5.1978 to 30.9.1978, while, the latter covered the period 1.12.1980 to 30.6.1981. In both the proceedings, the Appellate Authority held that the tenant had committed wilful default in payment of rent and on a consideration of the facts, it was held with reference to the proceedings arising out of the first application for eviction that the tenant had not committed wilful default. Dealing with the propriety of the filing of the second application, the Division Bench pointed out that if during the pendency of the eviction proceedings, there is a failure on the part of the tenant to pay the rent, the landlord can file an application under Section 11 of the Act and obtain reliefs and that is a special machinery and in disregard of or by -passing that special machinery, the landlord cannot institute fresh proceedings on the ground of non -payment. The analogy of the applicability of Section 11, on the basis of which that conclusion was come to, is not only inappropriate, but inapplicable as well, as, in that case, from the facts, as could be gathered from the judgment, there was no application at all under Section 11 of the Act. Even otherwise, as laid down by the Full Bench in the decision referred to earlier, there is no prohibition in the Act against the institution of proceedings for eviction for a second time during the pendency of proceedings already initiated for eviction on a cause of action, which arises subsequent to the institution of the earlier proceedings. Indeed the decision in K. Perumal Chettiar v. Muthuswami, (1962) 2 M.L.J. 218 (F.B.) is binding on me, as it was also of the Division Bench, and the decision of the Division Bench has been rendered without even so much as a reference to the Full Bench decision of this Court, which has also stood the test of time. Therefore, the reliance placed by learned Counsel for the petitioner upon the decision of the Division Bench in Durgai Ammal v. R.T. Mani, (1989) 1 L.W.155 would not be of any avail.