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PETITIONER: VIJAY AMBA DAS DIWARE & ORS.

       Vs.

RESPONDENT: BALKRISHNA WAMAII DANDE & AIIR.

DATE OF JUDGMENT:       31/03/2000

BENCH: Syed Shah Mohammed Quadri, S.N.Phukan

JUDGMENT:

PHUKAN.  J.L.....I.........T.......T.......T.......T.......T.......T..J

     The  landlord filed an application under Items (i) and (ii) of sub-clause (3) of Clause 13 of The Central Provinces and  Berar  Letting of Houses and Rent Control  Order,  1949 (for  short  the  Order)  before the  Controller  which  was allowed  and  the  controller   granted  permission  to  the landlord to serve the notice of eviction on the tenant.  The appeal  was  dismissed  by the Resident  Deputy’  Collector, Arnravati and the writ petition filed by the tenant was also dismissed in limine.

     The  landlord  pleaded before the controller that  the tenant  was  a monthly tenant since 1961 and rent was to  be paid  on  the first day of every month according to  English calendar.   It  was  also  pleaded that  the  tenant  was  a habitual defaulter in payment of rent.  The appellant-tenant pleaded  before  the Controller that rent was lo be paid  as per his convenience and he was

     neither  a habitual defaulter nor defaulted in payment of  rent.  Both the authorities below on fuels held that  it was  a monthly tenancy and also came to the finding that the tenant  was a habitual defaulter and defaulted in payment of rent.  The present appeal is by the legal representatives of the original tenant.

     It  has  been  urged  before us that  the  tenant  was neither a habitual defaulter nor was in arrears of rent.

     We  quote  below items (i) & (ii) of sub=clause(3)  of Clause 13 of the Order:-

     "13.   (1)  -  No  landlord  shall,  except  with  the previous written permission of the Controller-

     (a) - give notice to a tenant determining the leaae or determine  the  lease  if  the lease  -is  expressed  to  be determinable at his option;  or

     (.?)-"lf.after  hearing the parties the Controller  is salisfied:-

     "(i;  - that on the date of filing the application the tenant  was  in arrears of rent for any aggregate period  of three  months  and  that  he  failed  to  deposit  with  the Controller  the amount of arrears ordered to be deposited by

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the Controller within such time as may be fixed by him;  or

     (ii)  - that the tenant is habitually in arrears  with the rent:  or

     he  shall grant the landlord permission to give notice to determine the lease as required by sub- claused)." ;

     Clause  13  of  the Order prohibits  a  landlord  from serving  a notice for eviction on the lenant except with the previous  written  permission  of the  Controller  and  such permission  can  be given if’ the landlord can make out  any one  ground  mentioned in the said Clause.  In  this  appeal grounds  alleged  are item Nos.  (i) and (ii) of  sub-clause (3) of Clause 13 quoted above.

     The  word  ’habitual’ occurring in item (ii) have  not been defined in the Order.

     The  meaning to the words "habit’ and "habitually’  as given  in  The Law Lexicon (Second Edition) by  P  Ramanatha Aiyar’s K :

     "  Habit  -  Settled   tendency  or  practice,  menial constitution.’  The  word  "habit   implies  a  tendency  or capacity  resulting from the frequent repetition of the same acts.-  The words by "habit’ and habitually’ imply’ frequent practice or use."

     "Habitual  -  constant;   customary;   addicted  to  a specified habit."

     This  Court in Vi.jav Narain Singh Vs.  State of Bihar &  Ors.   AIR.   1984 SC 1334_ considered  the  question  of habitual  criminal  and  in   paragraph  31  the  expression "habitually’ was explained as follows:-

     ’The  expression  ’habitually’ means  ’repeatedly’  or ’persistendy".   It implies a thread of continuity stringing together  similar repetitive acts.  Repeated, persistent and similar,  but  not isolated, individual and dissimilar  acts are    necessary    to     justify     an    inference    of habit.......................  .,,"

     Therefore,   the  expression   ’habitual"  would  mean repeatedly or persistently and imphes a thread of continuity stringing  together  similar  repeated  acts.   An  isolated default  of  rent would not mean that tenant was a  habitual defaulter.

     As  directed by this Court the application and written statement  filed by the parties before, the Controller  have been furnished.  We find from the pleadings that there was a civil  suit filed by one Smt.  Ganga Bai in which the tenant was  a  party  and the tenant was directed to pay  the  rent directly to the court.  Subsequently, tenant was informed by Smt.  Ganga Bai that.  tenant could pay The rent directly to the  landlord as the amount to be recovered by her was fully satisfied.

     It  has  been urged on behalf of the  tenant-appellant that the right to collect rent by the landlord was suspended by  the  above  order of the civil  court  and.   therefore, non-payment  of rent by the tenant to the landlord cannot be treated as default.

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     The  civil court did not restrain the tenant from  his legal  liability  to  pay rent regularly at the end  of  the month and he was only directed to

     deposit the rent in the court instead of paying to the landlord.    We  are.   therefore,   unable  to  accept  the contention  that  the  tenant.  had no  legal  liability  to deposit,  rent  regularly in the court till the  amount  was fully satisfied.

     In  the  application  before  the  Controller  it  was alleged  by  the landlord that the tenant was in arrears  of rent  .from 1.4.76 to 31.12.83 for about 93 months amounting to  Rs.  5.766/- and that the tenant deposited Rs.   4,000/- in  civil  court  in  view  of   the  above  order  by  four installiments  leaving  balance of RS.  1,766,’’-..  In  the written  statement the above averments have not been  denied but  plea  taken  was that rent was to be paid  as  per  the convenience  of  the tenant which was rejected by ’both  the auhorities below.

     The  above  manner of depositing rent in  installments clearly  shows that the tenant "repeatedly and  continuously defaulted in payment of rent and he was, therefore, habitual defaulter.  He was also in arrears of rent as he did not pay the mil amount of rent.

     Our  attention has been drawn to the decision of  this Court  in J;  Jermons u Vs.  Allammal and others 1999(7) SCC 382.    In  that  case  the   landlord  was  served  with  a prohibitory  order by the Tax Recovery Officer for receiving rent and the tenant was also prohibited and restrained from

     making  payment  of a certain debt and from that  date the  tenantl stopped payment of rent.  This Court held  that as the tenant was prohibited and restrained from paving rent he  did  not commit willful default in payment of  rent  but that  is not .so in the present appeal as the tenant was not prohibited for making payment of rent.

     For   what  has  been  stated   above  we  hold   that authorities below rightly held that the appellant-tenant not only  defaulted  in  payment of rent but he was  a  habitual defaulter.

     In   the  result,  the  appeal   has  no  merits   and accordingly it is dismissed.  Parties bear their own costs.