TaxTMI 
TaxTMI 
1985 (1) TMI 306
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.... out the suit premises No. 3-B, New No 2-B, Davidson Street, Broadway Madras, to the appellant-tenant on a monthly rent of Rs. 600 for non-residential use. The appellant, despite repeated reminders, did not pay the rent for the period from October 1978 to August 1979. The respondent filed a suit on 2 12.79 for evicting the appellant on two grounds wilful default in payment of rent, and (2) material acts of waste committed in the building. 4. It may be mentioned here that before filing a suit for eviction of the appellant, the respondent on 17.9.79 sent a two months` notice to the appellant. through his Advocate to clear up the dues. The appellant on receipt of the notice paid up the amount of the arrears, amounting to Rs. 6,600 on 3.10.79, i.e., within the stipulated period of two months. But, the respondent contended that in view of the past conduct of theappellant he was guilty of wilful default within the meaning of proviso to s. 10 (2) of the Act. 5. So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17.9.79 even prior to the filing of the suit, it is manifest that on the date of filing of the suit no cause of action i....
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....n eviction petition against the appellant- tenant on the grounds of wilful default and the premises needing repairs. However, the second ground was not pressed and the only point which survived for deter mination was whether there was any wilful default on the part of the appellant. The brief facts are that the appellant became a tenant under the father of the respondent in 1953 at a monthly rent of Rs. 15 which was subsequently mutually agreed to be increased to Rs. 49 per month. The respondent contended in his petition that the appellant became a defaulter in payment of the rent as he did not pay the rent for the months of June 1977 to January 1978. The respondent also issued a notice on 16.1.78 demanding the dues amounting to Rs. 392. The appellant sent a detailed reply on 30.1.78 alongwith a Bank Draft for Rs. 392 which was, however, not encashed by the respondent and returned to the appellant subsequent to the filing of an eviction petition which was filed on 11.8.1978. 9. The Rent Controller found the tenant to be a wilful defaulter and consequently order his eviction. However, on appeal the Appellate Authority reversed the finding of the Rent Controller and accepted the p....
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.... The High Court upheld the decision of the courts below and held that the appellant had wilfully defaulted in the payment of rent and ordered the eviction of the appellant. 12. In Civil Appeal No. 2246 of 1982, the respondent- landladies let out the premises to the tenant-appellant for non-residential use on a monthly rent of Rs. 105. The respondents filed an eviction petition on 2.11.76 against the tenant on the ground of wilful default for non-payment of rent for the period from January 1976 to September 1976, i.e., for a period of 9 months. But before filing the eviction petition, the respondents on 6.7,1976 issued a notice to the tenant to pay the dues and on 17.7.76 the appellant paid a sum of Rs. 630 which was accepted by the landladies without prejudice. The Rent Controller found that the default in payment of rent was not wilful and therefore dismissed the appl.cation of the landladies. On appeal, the Appellate Authority reversed the finding of the Rent Controller and held that the default, was wilful. In revision, the High Court did not agree with the contention of the appellant that he was not wilful defaulter as immediately after filing of the eviction petition he had....
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....A in payment of rent are not uniform and differ from State to State. Some Acts do not mention `wilful default' at all, some mention it in a negative form while some put it in an affirmative form. To cut the matter short, from a review of the various Rent Acts the position that emerges is that the provisions relating to eviction are couched in three different types of default- (1) Acts which expressly mention 'wilful default' without defining the same, (2) Acts which do not mention the words 'wilful default' at all but confer a right on the landlord to evict the tenant on pure and simple default after a certain period of time when the rent has become due, which is also different in different States, (3) Acts which use the expression 'wilful default' but in a negative form rather than in an affirmative form. D 15. These are the A.P. Buildings (Lea5e, Rent and Eviction) Control Act of 1960, The Orissa House Rent Control Act, 1967 and the Pondicherry Buildings (Lease & Rent Control) Act, 1969 (hereinafter referred to as the 'A P. Act, 'Orissa Act' and 'Pondicherry Act' respectively) The last category of the A....
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....the relevant portion of which runs thus: "Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful." 18. Pondicherry Act is another statute which also contains the word 'wilful' in a negative form, the relevant portion of which runs thus: "Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay of tender rent was not wilful..." 19. The aforesaid Acts undoubtedly contemplate that a default simpliciter would not be sufficient to evict the tenant but it must further be shown that the default was not wilful. The Act, however is silent on the mode and the manner in which a court may decide as to what is wilful and what is not wilful. Thus, the Act has left it to the courts to decide this question. So far as the Tamil Nadu Act is concerned, it clearly defines as to what is 'wilful default'. Proviso to s. 10 (2) of the Act runs thus: "Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may....
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....'wilful default' have been defined thus: 'Wilful'-deliberate conduct of .l person who is a free agent, knows what he is doing and intends to do what he is doing. 'Wilful default'-Either a consciousness of negligence or breach of duty; or a recklessness in the performance of a duty. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. 22. In Words and Phrases', Volume 11 A (Permanent Edition) at page 268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In volume 45 of 'Words & Phrases', the word 'wilful' has been very clearly defined thus: 'Wilful'-intentional; not incidental or involuntary: - - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently: - in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary. P. 296 - "Wilful"....
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....al object of the main enactment. 28. Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it...The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject- matter of the proviso." 29. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients: P. 317 "Provisos-These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso, would be within it." P. 318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment. " 30. Sarathi in 'Interpretation of Statutes' at pages 294- 295 has collected the following principles in regard to a proviso:- (a....
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....t a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha,( [1962] 2 SCR 159) Hidayatullah, J, as he then was, very aptly and succinctly indicated the parametres of a proviso thus: "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule." 34. In West Derby v. Metropolitan Life Assurance Co.( [1897] AC 647) while guarding against the danger of interpretation of a proviso, Lord Watson observed thus: "a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute." 35. A very apt description and extent of a provio was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co.( [l909] AC 253.) where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting someth....
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....t of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself " 41. In Dwarka Prasad v. Dwarka Das Saraf,( [1976]1 S.C.R. 128.) Krishan Iyer, J. speaking for the Court observed thus: B. "There is some validity in submission but if, on a fair construction, the principal provision is clear, a proviso can not expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. 42. In Hiralal Rattanlal etc. ....
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....s merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in 'Interpretation of Statutes' while dwelling on the various aspects of an Explanation observes as follows: "(a) The object of an explanation is to understand the Act in the light of the explanation. (b) It does not ordinarily enlarge the scope of the original A section which it explains, but only makes the meaning clear beyond dispute." 47. Swarup in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus: "Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or substract from it. Thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain .. The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa.....
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.... even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations." 53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is- (a) to explain the meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so a- to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by....
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....for us to go either into the ethics or philosophy of such a provision because we are concerned with statutes having different kinds of provisions. 55. With this little preface we would now examine the working and relevant provisions of the Act alongwith similar provisions contained in the other three Acts, viz., A.P., Orissa, and Pondicherry Acts, which are almost in pari materia the proviso to s. 10 (2) of the Act. The only difference between the Act and the other Acts is that where as an Explanation is added to the proviso to s. 10 (2) of the Act, no such Explanation has been added to the provisions of the other three Acts; hence we have now to consider the combined effect of the proviso taken in conjunction with the Explanation. 56. We may, therefore, extract the Explanation again to find out what it really means and to what extent does it affect the provisions of the Proviso: Explanation-For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent;" 57. If we analyse the various ....
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....the Act lays down that where the Controller is satisfied that the tenant has not paid or tendered the rent within 15 days after the expiry of the time fixed in the Agreement of tenancy or in the absence of any such Agreement, by the last date of the month next following that for which the rent is payable, he (tenant) undoubtedly commits a default. Two factors mentioned in s. 10 (2) (i) seem to give a clear notice to a tenant as to the mode of payment as also the last date by which he is legally supposed to pay the rent. This, however, does not put the matter beyond controversy because before passing an order of eviction under the proviso, it must also be proved that the default was wilful and if the Controller is of the opinion that the default in the circumstances and facts of the case was not wilful, in the sense that it did not contain any of the qualities or attributes of a wilful default as indicated by us above, he may give the tenant a reasonable time, not exceeding 15 days, to pay the entire rent and if this is complied with,the application for ejectment would stand rejected. The difficulty, however, is created by the Explanation which says that once a land lord gives a two....
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.... (2) where the landlord chooses to issue two months' notice and the rent is not paid then that would be a conclusive proof of the default being wilful unless the tenant proves his incapability of paying the rent due to unavoidable circumstances. B 63. The argument of the counsel for landlords was that even if a notice under the Explanation is given that does not take away the jurisdiction of the proviso to determine whether or not the default has been wilful if it contains the qualities and attributes referred to above because what the Explanation does is merely to incorporate an instance of a wilful default and is not conclusive on the point and would have to be construed by the court in conjunction with the conditions mentioned in the proviso. We are, however unable to go to this extreme extent because that will actually thwart the object of the Explanation. As we read the Explanation, it does not at all take away the mandatory duty cast on the Controller in the proviso to decide if a default is wilful or not. Indeed, if the landlord chooses to give two months' notice to his tenant and he does not pay the rent, then, in the absence of substantial and compelling re....
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....iso to s. 10 (2) of the Act was expressly considered and Ratnam, J. Observed as follows: "A reading of the Explanation indicates that it is not exhaustive of all cases of wilful default, but it specifies only one instance where the default should be construed as wilful. If a tenant does not pay the rents at all for a considerable time and the landlord files a petition for an order of eviction on the basis that the tenant had committed wilful default without issuing any notice, then, in the absence of any other explanation by the tenant, the default should be construed as wilful, in spite of the fact that the landlord had not chosen to issue a notice to the tenant claiming the rents. In this view, I hold that counsel for the petitioner cannot be of any assistance to him." 65. We feel ourselves in complete agreement with the view taken by the learned Judge On the interpretation of the proviso read with the Explanation. In the case of Khivraj Chordia v. G. Maniklal Bhattad.( AIR 1966 Madras 67) Ramamurti, J. has drawn a very apt and clearcut distinction between a simple default and a wilful default and has pointed out A that in order to be a 'wilful default' it mus....
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....ng regard to the tests and the criteria laid down by us there can be no doubt that wilful default in the payment of arrears to the tune of Rs. 900 has been proved and as there is nothing to show that the arrears were not paid or withheld due to circumstances beyond the control of the tenant, the order of eviction passed by the High Court is confirmed, and the appeal is allowed. 69. In civil appeal No. 1992 of 1982, a somewhat peculiar position seems to have arisen. It is true that, to begin with, the tenant did not pay the rent for the months of June 1977 to January 1978 which led the landlord to issue a notice on 16.1.78 demanding payment of arrears amounting to Rs. 392. The tenant within 15 days of receipt of the notice (on 30.1.783 sent a detailed reply to the landlord and enclosed a Bank Draft of Rs. 39.2 which was, however, not encashed by the landlord and returned to the tenant after filing of the eviction petition, for reasons best known to him. Therefore, since the tenant had already complied with the notice within the stipulated time envisaged by the Explanation to Proviso to s. 10 (2) of the Act, by no stretch of imagination could be called guilty of wilful default. On....
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....y reversed the finding of the Rent Controller and held that the default was wilful. The High Court in revision upheld the order of eviction O n the ground that there was no satisfactory explanation for non- payment of rent for the period January to June 1976. In coming to this finding, the High Court was clearly in error because the tenant had already deposited the entire dues including the rent from January to June, on 17.7.76. Thus, the question of wilful default could not arise nor could it be said that the default was either conscious or deliberate or international. Moreover, in view of the Explanation since the tenant had paid the amount within the time of the notice, there could be no question of wilful default. This fact seems to have been completely overlooked by the High Court. We, therefore, allow the appeal and set aside the order of the High Court directing eviction of the tenant. 73. In civil appeal No. 4012 of 1982, the tenant occupied the premises at a monthly rent of Rs. 325. It appears that the tenant defaulted in payment of tent from June 1976 onwards and after repeated demands, only a sum Or Rs. 1000 was paid by him on 1.4 77. leaving a substantial balance of ....
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....cordance with the provisions of section 10 or sections 14 to 16. For these appeals we are not concerned with the provisions of sections 14 to 16. 77. The first Proviso to sub-section (l) of section 10 stipulates that the said sections 14 to 16 would not apply to a tenant whose land lord is the Government- The second Proviso also provides that if the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. Sub-section (2) of section 10 of the Act deals with the procedure which a landlord must follow in order to evict his tenant. It provides that a landlord should apply to the Controller for a direction for eviction if he wants it and, if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is ....
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....sonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date such payment or tender and on such payment or tender, the application shall be rejected. The Explanation which is the subject matter of interpretation before us and which was added, as noted before, by Act 23 of 1973 by section 10, stipulates that for the purpose of the said sub-section, namely sub section (2) of section 10, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent. The question, therefore, is-can the default be construed as wilful under any other circumstances apart from default continuing after the issue of two months' notice by the landlord claiming the rent ? In other words, for the purpose of this section, will the wilful default be only when notice has been given by the landlord and two months have expired and the tenant has not paid the rent ? My learned brethren say that there may be other circumstances constituting wilful default. With respect, I differ. I will briefly note the reasons. 79. As I....
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....ult by the tenant in the payment of rent continues after issue of two months' notice by the landlord claiming the rent If that is the position, in a case where the landlord has given notice to the tenant claiming the rent and the tenant has not paid the same for two months, then the same must be construed as wilful default, whatever may be the cause for non-payment- bereavement on the date of payment in the family of near or dear ones or serious heart attack or other ailment of the tenant or of any person sent by the tenant to pay the rent cannot be excused and cannot be considered to be not wilful because the legislature has chosen to use the expression "shall be construed as wilful" if after a notice by the landlord for two months, failure to pay or tender rent on the part of the tenant continues, and if it is wilful then under sub-section (2) clause (i) read p with the proviso as explained by the Explanation, the Controller must be satisfied and give an order for eviction. The question is whether in other cases, that is to say, in cases where admittedly or by other facts or aliunde the Court comes to the conclusion that the default is wilful, for instance, in a case where th....
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....t in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent- It is true that legislature has not chosen to use language to indicate that in no other cases, the default could be considered to be wilful except one case which has been indicated in the Explanation. 86. As I read the Explanation it is not so necessary because Legislature has defined 'wilful d fault' by the expression that 'default to pay or tender rent shall be construed' meaning thereby that it will mean only this and no other. My learned brethren have given instances of difficulties and hardships, if the other defaults, that is to say, default apart from tenant not paying after the expiry of notice by the landlord are not considered as wilful default. It is true that there may be hardships and many problems might arise. I share the apprehension of these problems and hardships but I find no justification to read that these hardships of which Legislature must have been aware, were also intended to be covered by the Explanation. It appears to me that the meaning is clear about the purpose of introduction of the Explanation, i.e, to obviate th....
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....pproach was emphasised by Lord Scarman in the decision of the House of Lords in the case of Regina v. Barnet London Borough Council Exparte Nilish Shah. (1983 (2) Weekly Law Reports, 16 at 30) User of policy in interpretation of statutory language, Lord Scarman observed, was an impermissible approach to the interpretation of statutory language. Judges should not interpret statutes in the light of their own views as to policy. They may, of course, adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy. 90. In the case of Carrington and Others v. Therm-a-Stor- Ltd, (1983 (1) Weekly Law Reports 138 at 142) the Master of the Rolls observed that "If regard is had solely to the apparent mischief and the need for a remedy, it is only too easy for a judge to persuade himself that Parliament must have intended to provide the remedy which he would himself have decreed if he had legislative power. In fact Parliament may not have taken the same view of what is a mischief, may have decided as a matter of policy not to legislate for....