R THANGASAMI NADAR Vs. AR A S DURAISWAMI NADAR
LAWS(MAD)-1970-10-1
HIGH COURT OF MADRAS
Decided on October 13,1970

R.THANGASAMI NADAR Appellant
VERSUS
AR.A.S.DURAISWAMI NADAR Respondents

JUDGEMENT

- (1.) THESE revisions filed by the tenant are directed against the orders of the District judge. Tirunelveli, in M. C. Nos. 13 and 14 of 1968 setting aside the order of the district Munsif, Kovilpatti in E. P. Nos. 423 and 424 of 1967 holding that the petitioner had not committed willful default in payment of the rents and as such they are not liable to be evicted from the lease hold premises. The facts which gave rise to the above proceedings are as follows:
(2.) THE respondent who is the same in both the revisions filed R. C. O. P. 40 of 1964 and 1 of 1965 against the petitioner in both the revisions on the ground that he had committed willful default in payment of the rents. When the eviction petitions came up for hearing the petitioner and the respondent entered into a compromise and filed a compromise memo and in pursuance of the compromise memo the rent controller by his order dated 16-3-1965, after recording the fact that the earlier arrears of rent had been paid, directed that the tenant should pay the rent due from March 1965 at Rs. 20 per mensem and Rs. 35 per mensem for the two premises respectively on or before the 3rd of the succeeding month by money order and that in default, the respondent would be entitled to evict the tenant. As per the terms of the above order the petitioner was paying rents to the respondent regularly upto July 1967. But for the month of August 1967 it is alleged by the petitioner that the amounts were sent by money order but that was refused by the respondent and thereafter he took steps to deposit the amount into court. The respondent however filled E. P. 423 and 424 of 1967 for evicting the petitioner from the buildings in his occupation on the ground that he had not paid the rents as per the terms of the original order passed by the Rent Controller under Ex. A. 1 after August 1967 and that he is entitled to have the eviction order duly executed and to get delivery of possession of the properties. The execution petitions were resisted by the petitioner on the ground that the order passed on the basis of a compromise on 16th March 1965 is null and void, and that the respondent cannot have him evicted unless it is established that he has committed willful default in payment of the arrears of rent as contemplated by Section 10 of the Madras Buildings (Lease, and Rent Control) Act. The learned District Munsif dismissed the execution petitions on the ground that there was no willful default on the part of the petitioner and that as such he could not be evicted from the premises in question. The learned District Judge had, however, held that the eviction order passed on the basis of the compromise governed the rights of parties and that the respondent is entitled to have the eviction order executed if default has been committed in carrying out the directions contained therein. The question, therefore, to be considered in these revisions is whether the petitioner is liable to be evicted for not sending the amount of rent for August 1967 by money order on or before 3-9-1967 by reason of the terms of the compromise order dated 16-3-1965.
(3.) THE learned counsel for the petitioner draws my attention to a decision of mine in C. R. P. 797 of 1970 wherein, after considering the decisions of the Supreme court in Bahadur Singh v. Muni Subrat Dass 1969-2 SCR 432; Kaushalya Devi v. K. L. Bansal, and Ferozilal v. Manmal, it has been held that an order of eviction passed by the Rent Controller solely on the basis of a compromise entered into between the parties without applying his mind to the question whether any of the grounds of eviction set out in Section 10 of the madras Buildings (Lease and Rent Control) Act, 1960 existed or not, is a nullity and as such not executable. The contention of the learned counsel for the petitioner is that the order of eviction dated 16-3-1965 passed by the Rent controller on the basis of the compromise is nullity and cannot be executed, and that the respondent cannot, therefore, have an order of eviction against the petitioner unless he establishes that there had been wilful default in payment of rent for the month of August 1967. It is stated that the August 1967 had already been deposited into court as the respondent refused to receive the same on the ground that the rent was not sent before 3-9-1967, and that in the circumstances it cannot be said that the default was willful so as to entitle the respondent to have an eviction order passed.;


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