..

S. SUNDARAM PILLAI, ETC.

v.

V.R. PATTABIRAMAN ETC.

January 24, 1985

[S. MuRTAZA FAZAL Au, A. VARADARAJAN AND SABYASACHI

MuKHARJI, JJ.J

643

Re1il Control-Tamil Nadu Buildif!CS (Lease and Rent Control) Act

1960, sec. 10(2J(i)-Proviso anJ Explanation-Scope of-Wilful default-Mean·

A

B

c

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Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act,

1960(for short, the Tamil Nadu Act) deals with the eviction of tenants and postu­

lates that a tenant shaJI not be evicted whether in acquisition of a decree or

otherwise except in accordance with the provisions of s.10 or ss. 14-16. Section

10(2)(i) of the Tamil Nadu Act provides for the eviction of a tenant on the

ground of non-payment of rent. It lays· down that where the Controller is E

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

lhe

pro-

viso to sub·s.2 provides that in any case fa!Iing in clause (i), if the Controller is

satisfied that the tenant's default to pay or tender rent was not wilful, he may,

notwithstanding anything contained in s.IJ, give the tenant a reasonable time, F

not exceeding

15 days to pay or tender the rent due by him to the landlord upto

the date of such payment or tender and on such payment or tender the applica-

tion shall be rejected. The Explanation which was added by Act 23 of 1973 to

the said proviso stipulates that for the purpose cf sub-s.2 of s

IO, 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. G

In Civil Appeals Nos. 1178

of 1984, 1992 of 1982, 2246 of 1982 and 1659

of 1982, the respondents·landlords issued notices to the appeilants-tenants

demanding the amount

of rent in arrears and thereafter filed eviction petttions

against the appellants.tenants, inter alia, on the ground of

14

Wilful default".

All the appellants-tenants complied with the notices issued by their respective

\~ndlords except the appellant-tenant in Civil Appeal No. 1659 of 1982 where

he made part payment only. However in Civil Appeal 3668 of 1982 and 4012 of

1982 the respondents-landlords had filed eviction petitions against the appellants-

tenants without issuing such notices before filing of eviction petitions. In all the H

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644

SUPREME COURT REPORTS [1985) 2 S.C.R.

appeals, the Madras High Court passed and/or confirmed, as the case may be,

the orders of eviction holding that the ground

cf

\,"iJful' default mentioned

in section

10(2)(i) had been proved against the tenants. Hence these appeals by

special leave. The common question of Jaw involved in these appeals was as to

what

is the interpretation

of the term "wilful default" in the Explanation to the

Proviso of sub-s.2 of s. 10 of the Tamil Nadu Act.

Counsel for the appelants-tenants contender.I (i) that despite the explana­

tion it is open to the court on an appraisement of the circurn~tances of each

case to determine whether or not the default

was wilful and in

doing so it can­

not be guided wholly and solely by the Explanation which is merely clarificatory

in nature and (ii) that mere non-payment of arrears of rent after issue of two

months' notice cannot

in all circumstances auton1atically amount to a wilful

default if the non-payment does not

fulfil the various ingredients of the term

0

wil fut def au 't". On the other hand it was argued by counsel for the respondents­

landlords

(i) that the very purpose of the Explanation is to bring about unifor­

mity in court decisions by laying down a conclusive yardstick

in the shape of the

Explanation and once it

is proved that after issue of two months' notice if the

tenant does

not pay the arrears within the stipulated period of two months, he

is Hable to be ejected straightaway.

On the question of interpretation of the terms 'wilful default' appearing

in the proviso to s.10(2)

of the Tamil Nadu Act coupled with the Explanation,

the Court,

HELD : Per Fazal

Ali

and A. Varadarajan JJ. (majority)

1. Though the Court

is concerned mainly with the Tamil Nadu

Act, yet

in order to understand the contextual background

of the words

'wilful default'

and its proper setting, it wiH be useful to refer to those Acts which contain

the term ·wilful default' either in a -negative or in positive form. These Acts

are (1) AP. Buildings <Lease, Rent and Eviction) Control Act of 1960, the

Orissa House Rent Control Act 1967 and the Pondichery Buildings Lease and

Rerit Control Act

1969, (hereinafter referred to as the A.P. Act,

Orissa Act

and Pondicherry Act respectively). Although the default contemplated by these

Acts

is wilful yet it has been put in a negative. Form which undoubtenJy gives

suffieient leeway to the tenant

to get out of the rigors of the statutory provision

the

relev~nt provisions of these Acts relating to eviction of tenants on the ground

of 'wilful default' in payment of rent 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. These Acts are however, silent on the mode and the manner in

which a court

may decide as to what is wilful aod what is wilful. Thus these

Acts bave left it to ti e courts to decide this question. So far as the Tamil Nadu

Act is concerned,

it makes a marked in1provement by broadening the ambit of

G

'wilful default' in the proviso to s. 10(2) which is further clarified by an Explana­

tion added to

it subsequently. Before coming to any conclusion it may be neces­

sary to examine the exact meanirg

·of the words 'wilful default' as also the

interpretation

and the scope of the Proviso and the Explanation. [657H; 658A]

2. The words

'v.'ilful default' would mean a deliberate and intentional

H default knowing fully well the legal consequences thereof. A consensus of the

'/"'

.

'

I.

J

S.S. PILLAI v; V.R .. PATTABiRAMAN • ... i 645

.. ··· /

-~i

meaning of the words "wilrut derault' appears to indicate that default in order to, A'·~

ht wftFul must be inten:ional, deliberate; calculated anj cOnscious. with futl /

. l:,nowltd3e of leg•I coosequonccs flowing therefrom. [660B; 661A-B)

.. "A Dictionary of Law' by_ L.B. Co1z-~o, '.page 361 ; Wo~ditand Ph~a-ses;

, o'ume 11-A (Permanent Editiori) p.ige 268 ; Word$-and Phras~s'VOI. -

45, pages 296. Web'iter•s Third New International DiCtionarY· Vol. III

page 2617 and Volume I page. 590 and Black's Law Dictionary (4th B

Edn.) page 1773 referred to •.

3. The. well. estabt:ished. ruiC' of int~ip'ret~tion of a prOVis~ .is.that~-­

proviso fl'ay have three •e .. ~rate ·functions. Nt.rmally, _a prOviso iS mean_i to b-e.

an exc~ption to somfthin_g within the main enac1ment or to qualify somCthirig •

enacted the rt in which but for the proviso would be ·within the Purvie'w Of the ·

enactm~nt. In Otbe. words, a proviso canriot be tOn apart fro.Di the main ena .. t·

ment nor can it be use J to nullify or set at naught the real ot-ject of the maia

eri<lc1.rllent .. While :D.tefpreting a prOv·so C3.re mu!.t be :taken that it is used to

remove SpeCi3.t ·ca Cs from 1he genera.I eri<ictmerit'and proVide 'for.theni separately

Jn short, gen rally speaking. a proviso is intCildCd to limit lhe eD.acied provision,

so as io except something which would have otherwise been within it or in some

mea~ure to modif)' the' ena~ting ct3Use.: Sofnetimes a Proviso' miy be' e'ffibedded

in the main provision and becomes an integral' Pa'rf of it So as. to amount to a

substant~ve provh.,ion i_t~elt To sum. up, a proyiso may serve four different

purposes : '. . '

; , 1. ciU~tifying or excePti~g Certain provisionS.from 'the m:iin enactment ;

• . - • - • j ' ' • ·,' • ·~, '

2. it 'may entirely change the very concept or the intendment or the enact•

ment by insisting on certain mandatory conditions to be fulfilled in order to

make the enactinent Workable ; · ·' · , · ·:'

'· • , t ~ • ; '... • ? f, ,

3. it may be embedded in the Act itself as to become an integral pcirt of

the enactment and thus acquire the tenor and coJotir of the substantive enact·

ment itself : and

, . 4. it may be ·used inefeiy to 3:Ct _aS ~n ~-pt(o'Dai· a'~dencia ·to ~th~ enactment

"ith the sate object or eXPJaining the real intCndment 'of the statuiofy prOvision.·: .

c

D

E

[661J>.E; 664CD; 665H; 666A:cf · F

Craie·s .in ~Statute Law' t7th Edri.) Page 218~. odgCrs in 'Construction of

Deeas 3.nd Statutes' (Fifth Edel.) 317, 3i8. Sa?athi i·n "Interpietation of Statutes'·.'

page 294-2951. refer~ to •. ,', , .. • · .· . · · · , . . · . ,

-·' 1-'

Local GovernmtnJ. Board v. f south Stoitehiirri Uiiloii [1909) A.C. 57. ·

/shverlal.Thakorelal Almaulav-1otiobhai N;gjlbhal[l966) I SCR 367, Madras

and Souihe1n Maha1atta Railway CO. Ltd. v." Bezwada Municipa.fitY. AIR 1944

C11: weSt Derb·.~·v. Me1ropolitd11 Life A.rsu,:ance CO. [1897) AC 647. Rllodda -

Urban District Co11nc,il v Taff Vale. Railway Co. (1909) AC 253 and Jeil~ings· and·

Another v ·Kelly [1940] AC 2o6 referred to: · · · · ' · ·· · ·

Com.missiofter of lncO;tle-T~~~ Mys0Te, erC. 'v.", Inda Mercan11Ie'Ba11k'

Ltd. \i959) 2 Supp. 'SCR 256,:shah BhoJrO/. Kiiverfi Oil lil/s and Ginning

Factory

v.

Subhash Chandra Yograf Sinha; [1962) 2 SCR 159, State of Rajasthan ·

G

H

A

B

c

D

E

F

646 SUPREME COURT REPORTS (1985) 2 S.C.R.

v. Leela Jain [1965] l SCR 276, Sales Tax Officer, Circle I, Jabalpur v. Hanu­

man Prasad [1967] 1 SCR 831, Commissioner of Commercial Taxes and Ors.

v. R.S. !haver and Ors. [1968] l SCR 148, Dwarka Prasad v, Dwarka Das Saraf

[1976] 1 SCC 128 and Hirata/ Rattan/al etc. v. State of U.P. and Anr. etc.

[197311 sec 216 relied upon.

4. The next question

is as to what is the impact of the Explanation on the

Proviso which deals with the question of wilful default'. It is now well settled

that an explanation added to a statutory provision is not a substantive provision

in any sense of the term but as the plain meaning of the word itself shows, it is

merely meant

to

explain_or qualify certain ambiguities which may have crept in

the statutory provision. From a conspectus of the authorities, it is manifest that

the object of an Explanation to a statutory provision is-

(a) to explain the meaning and inte~dment of the Act itself;

(b) where there is any obscurity or vagueness in the main enactment, to

clarify the same so as to make it consistent with the dominant objeet

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 enact­

ment

or any part thereof but where gap is left which is relevant for

the purpose

of the

E~planation, in order to suppress the mischief and

advance the object

of the Act it can help or assist the court in

interpre­

t~ng 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 becoming an hindrance in the interpretation of the same. [666F·G ; 668G·H; 669A-C]

SaratW in Interpretation

of Statutes, p. 329 ; Swarnp in Legislation and

Interpretation' pages 297-298 and Bindra in 'Interpretation

of Statutes' (5th Edn.)

page

67. referred to.

Burmah Shell Oil Storage and Distributing Co. of lndla Ltd. and Anr.

v. Commercial Tax Officer and Ors. (1961] l .SCR 902, Bihta Co:Jperative Deve­

lopment Cane Marketing Ualon Ltd. and Anr.

y.

The Bnnk of Bihar and Ors.

[1967] l SCR 848 and Dattatraya Govind Mahajan and Ors v. State of Mahara­

shira and Anr

[1977) 2

SCR 790 relied upon.

5(1). Although almost every State has its own Rent Act, neither the

G Explanation nor the statutory clause concerning the term 'wilful default' is

mentioned therein. These Acts seem

to proceed

only on the simple word ·default'

and perhaps to buttress their intention they have laid down certain guidelines to

indicate the grounds of ejectment wherever a default takes place. Looking general­

ly at such Acts, they seem to ,have first provided statutorily a particular date or

time when the tenant on being inducted under the contract of tenancy, is to pay

H the rent. Such a provfSion may Qr may not be against the contract of the tenancy

,.

S.S. PILLAI v. Y. R. PAITABIRAMAN 641

and if it is to that extent, it overrides the contract, This, therefore, gives suffi-A

cient notice to any tenant inducted in any premises

that

r.e must pay the rent

according to the yardst ck set out

by the Act,

failing which he runs the risk of

being evicted for default. Some Acts, however, have provided a particuJar num-

ber

of defaults to enable the Rent Controller or Court to find out whether such

a default would entitle the landlord to get

an order of eviction. There are some

other Acts which have made rather ingenious and, apt provisions for expedi·

ting the process of eviction in case

of default by providing that wt.enevcr a suit

for eviction

i~ filed against a tenant on the ground of default, the tenant in order

to show his bona

fides must first

depo5it the entire rent, arrears and cost in the

court

of the Rent Controller where the action is

flied on the very first date of

hearing, failing which the court or the authority concerned would be fulJy justi~

fled in striking down the defence and passing an order of eviction then and

there. The dominant object

of

surh a procedure is to put the tenants On their

guard.

It is true that such provisions are rather harsh but if a tenant goes on

defaulting then there can be no other remedy but to make him pay

the rent

punctua1ly unless some drastic step

is taken. These Acts, therefore, strike a just

balance between the rights of a landlord and those of a tenant. For deciding the

present cases, it

is not necessary to go either into the ethics or philosophy of

such a provision because the Court is concerned with statutes having different

kinds

of provisions. The relevent provisions of the

A.P., Orissa and Pondichery

Acts are almost in pari materia the proviso to Section 10(2) of the Tamil Nadu

Act. The only difference between the Tamil Nadu Act and the other Acts

is that

whereas an Explanation is added to the proviso to

s.10(2) of the Tamil Nadu Act,

no such Explanation has been added to the provisions of the other three Acts.

Hence the Court has to consider the combined effect

of the proviso taken in

conjunction with the Explanation. From an analysis

of the various concomitants

of the Explanation, the position seems to be that-

(a) there should be a default to pay or tender 1ent;

~4 (b) the default should continue even afler the landlord has issued two

months• notice claiming the arrears of rent ; and

(c) if, despite notice, the arrears are not paid the tenant is said to have

committed a wilful default and consequently liable to be evicted forthwith.

[669E-H ; 670A·D, F-G)

5 (ii) The Explanation, 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 compeling reasons, the Controller

or the court can certainly presume that the default is wilful and order liis eviction

straightaway, There

is no force in the view that whether two months notice for

payment

of rent is given or not, it will always be open to the Controlier under the

Proviso to determine the question of 'wilful default' because that would render

the very object

of Explanation otiose and nugatory. (6730-E]

6. Two facto:r:s 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

sup­

posed 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

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64S SUPREME COURT REPORTS (1985) 2 S.C.R.

proved that the defaolt 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,

he may give the tenant a reasonable time, not exceeding

J 5 days, to pay the

entire· rent and if this is complied with, the application for eiec!ment would stand

rejected. The difficulty, however, is created

by

!he Explanation which says that

once a landlord gives a 'two months' notice to his tenant for paying the arrears of

rent but the tenant continues in default even thereafter, then he is liable to be

evicted. There.

is a good deal of force in this argument which has its own ad

van~

tages. In the first place, it protects the court from going into the intricate question

as

to what is a wilful default and whether or not the conditions of a wilful default

have been satisfied which,

if permitted would differ from case to ca-e and court to

court. But the difficulty is that if uch a blanket ban is put on the court for not

examining the question

of wilful default once the conditions laid down in the

Explanation are satisfied then

it would undoubtedly lead to serious injustice to

the tenant.

-A subsidiary consequence of such an interpretation would be that

even though the tenant, after receipt

of the notice, ma v be wanting to pay the arrears of rent but is unable to do so because of unforeseen circumstances like,

death, accident, robbery, etc. which prevent him from paying the arrears, yet

under the Explanation he has to be evicted. Another difficulty in accepting the

first view, viz.,

if two month's notice is not given, the tenant must not be

presumed

to be a wilful defaulter, is that in such a case each landlord would has

to maintain a separate office so

that after every default a two months' notice

should be

give11,and if no notice is given no action can be taken against a tenant.

The correct view in the matter is in the following terms.

(i) Where no notice is given by the landlord in terms of the Explanation,

the Controller, having regard

to the four conditions spelt out in this judgment has

the undoubted discretion to examine the question as to whether

or not the default

committed by the tenant

is wilful, If he feels that any of the conditions mentioned

is lacking or that the default was due to son1e unforeseen circumstances, he may

give the tenant a chance

of locus

paenitentia ~by giving a reasonable time, which

the statute puts

at 15 days, and if within that time the tenant pays the rent,

the application for

eje·..:tment would have to be rejected.

(ii} If the landlord chooses to g;ve two months' notice to th~ tenant to

c!e"at up the dues and the tenant does not pay the dues within the stipulated time

of the notice then the Controller would have no discretion to decide the question

of wilful default because such a conduct of the tenant would itself be presumed

to be wilful default unless he shows that he was prevented

by sufficient cause or

circumstances beyond his control in honouring the notice sent by the landlord.

[671G-H ; 672A-D; F ; 673F-H ; 674A-B]

G N.

Pamaswami Reddiar v. S.N. Per;anuuhu Nadar, 1980 LPW Weekly

H

(vol. 93) p. 577 and Khivaraj Chordia v. G. Manik/al Bhattad AIR 1966 Madras

67 approved,

Rajeswari v. Vasurnal Lalchand, AIR 1983 Madras 97, referred to.

7.

In the light of the above principles and tests to be applied by courts-in

deciding the question

of wilful default, the Court allowed Civil Appeals Nos. 1178

of 1984, 1992 of 1982 and 2246 of 1982 and dismissed rest of the appeals. [678B]

..

S. S. PILLAi V. V. R; PATTABIRAMAN 649

Per ·Mukharji. J. (dissenting)

t (i) Default has been constrlled in various ways depending upon the

context. 'Default' would seem to embrace every failure to perform part

of one's

contract

or bargain. It is a purely relative term like negligence. It means nothing

more, nothing less, than not doing what is reasonable uncler the circumstances;

not doing something which you ought to do, having regard to the transaction.

Similarly, default

in payment imports something wrongful, the omission to do

some act which, as between the parties, ought to have been done

by one of

them.

It simply means non-payment, fa lure or omission to pay_ Default happens in

payment of tents under various contingencies and situations. Whether the default

is wilful

or not is also a question of fact to be proved from evidence, direct and

circumstantial drawing

inferences from certain conduct. If the Courts are free to

decide from varying circumstances whether def alt was wilful or not, then diver­

gence of conclusions are likely to arise 0ne judicial authority coming to the con­

clusion from certain circumstances that the default was wilful, another judicial

authority coming to a contrary conclusion from more

or less same circumstances.

That creates ar,omalies. In order to obviate such anomalies and bring about a unfform standard that Explanation explains the expression. "wilful" and accord­

ing to the Explanation added, a default

to pay or tender rent

"small be constru­

ed", as wilful if the default by the tenant nth~ payment of rent continues after

issue

of

twJ months' notice by the landlord claiming the rent. If that is the posi­

tion,

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 defau't, whatever may

be the cause for non-payment. Whe

...

ther in a particular case default is wilful or not, must be considered in accordance

with the definit:on provided in the Explanation to Proviso to sub-section (2) of

section 10 of the Act. If it wa~ intended that the courts would be free to judg!

whether in a particular set up of facts, the default was \'ilful or not where no

notice has been given, then in such a case there was no necessity of adding this

Explanation

to the

Proviso which is a step to the making of the findings under

clause

(1) of sub-section (2) of section

10 of the Tamil Nadu Act. It is well-settled

that Legislature does not act without purpose or in futility.

[680E-G; 681Jl.E; 682E-F]

Stroud·s Judicial Dictionary Vol. 1. Third Edition. page 757, Prem's Judi­

cial Dictionary. Vol. 11964 page 483. The Dictionary of English law, page 597,

Fakir Chander Dat' and Other v. Rarn Kutnar Chauer1i, Indian Appeals. Vol.

XXXI. p. 19.'. referred to,

t(ii) If a definition is provided of an experssion, then the courts are not

free

to construe the expression otherwise unless it is so warranted by.the use of

the expression such as

"except otherwise provided or except if the context

otherwise indicates." There is no such expression in the insttant case. There may

be

in certain circumstances intrinsic evidence indicating otherwise. Here there is

none. [682C-D]

2(i)' The expression "shall be construed" would have the effect of provid·

ing a definition of wilful default in the proviso to sub-section (2) Of section 10.

According to the Explanation; a default to pay or tender rent ''shaH ·be construed",

A

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6So SUPREME COURT REPORTS tJ98Sl ~ s.c.R..

as wilful if the default 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 bas given notice to the tenant claiming the rent and

the tenant has not paid the same for two month::.s, then the same must be constru·

ed as wilful default, whatever may be the cause for non-payment. 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

ten1nt continues, and if it is wilfu! then under sub-section(2) clause (I) read with

t'-e provi o as explained by the Explanation, the Controller must be satisfied and

give an order for eviction. The Legislature has provided an absolute and clear

definition

of 'wilful

default'. Other circu1nstances cannot be considered as wilful

default. It is true that Legislature has not chosen to use language to indicate that

in no other cases, the default could

be consider.d to be wilful except one default

case which has been indicated in the Explanation. But it

is not so necessary

be­

cause Legislature has defined 'wiJful default by the expression that ·default to pay

or tender rent shall

be construed' meaning thereby that it will mean only this and

no other. Therefore, a default wiII be construed as wilful, only where the landlord

has

Kiven notice and two months have expired without payment of such rent.

[682 B-R-C; H ; 681D-F ; 683A]

2(ii)Statutory provisions must be construed, if it is possible, that absuridity and

mischief may

be avoided.

Where the plain and literal interpretation of astatutory

provision produces a manifestly ab~urd and unjust result, the court might modify

the language used

by the Legislature or even

c'o some violence to it so as to achi­

eve the obvious intention or the Legislature and produce rational construction and

just results. Ironing out the creases

is possible but uot re-writing the language to

serve a notion of public policy held by the judges. [683C;

684B]

2(iii) Where two constructions are possible, one which avoids anomalies and

creates

reasonable· results should be preferred but whe1 e the language is clear and

where there

is a purpose that can be understood and appreciated for construing

in one particular manner, that

is to say, avoidance of divergence of judicial

opinions

in construing wilful default and thereby avoiding anomalies for d.fferent

tenants,

it would not be proper in such a situation to say that this difinition of

wilful default was only illustrativeand not exhaustive. The

Proviso to sub-section (2) of section 10 cannot be cons-

trued as illustrative when the Legislature has chosen to use the expression "shall

be construed". [683D-F]

In the aforesaid

view of the matter, the individual appeals are disposed

of accordingly, that

is to say, only those appeals of tenants are dismissed where

eviction orders were passed after two months' notice had been given and there

was continuance of default, and the rest of the appeals are allowed.

[685B·C]

Seaford Court E.1tates Ltd. v. Asher, [1949] 2 All E.R. 155 at pages 164

(CA), Regina v. Barnet London Borough Council Ex parte Nilish Saah, 1983 (2)

Weakly

Law Reports p. 16 at p.

30., Carrington and others v. Therm-a-Star Ltd.,

1983 (I) Weakly Law Reports p. 138 at p. 142. referred to.

..

S. S. PILLAI v .. R. PATIABIRAMAN 651

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1178 of 1984 A

From the Judgment and Order dated the 15th July, 1982 of the

-"i High Court of Madras in Civil Revision Petition No. 3396 of 1981.

-

AND

Civil Appeal No.

6211 of 1983

From the Judgment and

Order dated the 5th November, 1982

of the High Court of Andhra Pradesh in Civil Revision Petition

No. 2477

of 1982.

·

WITH

Civil Appeal No. 1992 of 1982

From the Judgment and Order dated the 17th December, 1981

of the H!gh Court of Madras in Civil Revision Petition No. 152 of

1981.

WITH

Civil Appeal No. 1959 of 1982

From the Judgment and Order dated the 14th December, 1981

of the High Court of Madras in Civil Revision Petition No. 1630 of

1980.

WITH

Civil Appeal No. 3668 of 1982

From the Judgment and Order dated the 20th October, 1982

of the High Court of Madras in Civil Revision Petition No. 4087 of

1982.

WITH

Civil Appeal No. 2246 of 1982

Fr~m the Judgment and Order dated the 5th November, 1981

of the High Court of Madras in Civil Revision Petition No. 1397 of

198<'.

AND

Civil Appeal No. 4012 of 1982

From the Judgment and Order dated the 23rd November 1982

of the High Court of Madras in Civil Revision Petition No. 3983 of

1981.

Y. S., Chitale and P. N. Rama/ingam fot the Appellant in

Civil Appeal No.

1178 of 1984.

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652 SUPREME COuRT REPORTS [1985] 2 s.c.ll.

P. G. Nair, K. K. Mani, V. Shekher and P.R. Setharaman for

the Respondents in Civil Appeal No.

ll 78 of 1984

A.K.

Sen and A.T.M. Sampath for the Appellant in Civil

Appeal No. 6211of1983.

T. V.S. Narasimhachari for the

Responcfent

K. Ramkumar for the Appellant in Civil Appeal No. 1992 of

1982

A. T. M. Sampath for the Respondent.

A. S. Nambiar for the Appellant in Civil Appeal No. 1659 of

1982.

K. S. Ramamurthy, and A.T.M. Sampath, for the Appellant in

• Civil Appeal No. 3668 of 1982.

C. S. Vaidianathan and K. K. Mani for the Respondents.

M. G. Ramachandran, and A.V. Rangam for the Appellant in

Civil Appeal No. 2246 of 1982.

T. S. Krishnamurthy Iyer for the Respondent.

T. S. Krishnamurth Iyer. and S. Balakrishna for the Appellant in

Civil Appeal No. 4012 of 1984.

Padmanbhan and D.N. Gupta for the Respondent in Civil

Appeal No. 4012 of 1982.

F The following Judgments were delevered

G

H

FAZAL Au, J. These appeals invlove more or less an identical

point of

law relating to the interpretation of the term 'wilful default'

appearing

in the proviso to section JO (2) of the Tamil Nadu

Buil­

dings (Lease and Rent Control) Act, 1960 (hereinafter referred to as

the 'Act') coupled with the Explanation which seeks to explain the

intent of the proviso.

We have heard counsel for the parties at great

length and a large number of authorities have been cited before

us in

support of both the parties.

Before

we take up the points of Jaw involved in these appeals

we would briefly narrate the bare facts of each of these cases in order

to test the correctness

of the points argued before us.

y-

•

s. s PILLAI v. v. ll. PATTABIRAMAN (Fazal Ali, J.) 653

In Civil Appeal No. 1178 of 1984, the respondent-landlord let

out the suit premises No. 3-B,

New No

2· B, Davidson Street, Broad­

way 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.

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

appel!,rnt. 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 the appellant be was gJi!ty of wilful default

within the meaning

of proviso to s. I

0 (2) of the Act.

So far as this appeal is concerned, as the entire rent had been

paid up

in pursuance of the notice dated 17 .9. 79 eveu prior to the

filing

of the suit, it is manifest that on the date of filing

of the suit no cause of action

in presenti having arisen, the suit

shpuld have been dismissed on this short ground alone

as being not

maintainable.

As indicated above, it was not open to the land­

lord after having received the entire amount

of arrears before filing

of the suit to have filed a suit for past conduct of the tenant. This

appeal, therefore, merits dismissal on this ground alone.

In Civil Appeal No.

6211of1983, the respondent-tenants were

given the suit premises No. 17/582, Ward

B,

Old corresponding No.

2, New

No. 5/8/582 Abid Road, Hyderabad, on a monthly rent of

Rs. 225 which was, by mutual consent, increased to Rs. 275 per

month in the year

1964. From l.7.66, the rent was again agreed to

be increased to Rs.

300 per month. The appellants-landlord filed a

suit under

s.

10 of the Andhra Pradesh Buildings (Lease, Rent and

Eviction Contrell Act, 1960 on 12.ll.71, against the respondents for

eviction on three grounds ; (I) wilful default by the tenants in pay­

ment of rent for the months of September, October and November

1971 (total amount being Rs. 9bO, (2) the tenants sublet the premises

to one Hanumantha, and (3) that the premises were required bona

fide for their own use. However, during toe pendency of the matter,

the original landlords sold away their interest in the property in

favour

of the present appellants before us and, therefore, the ques­

tion of

bonafied requirement abated there itself.

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654 SUPREME COURT REPORTS {1985] 2 s.c.R.

The Rent Controller upheld both the grounds of wilful

default and subletting. Aggrieved

by the said decision, the

respondents-tenant

filed an appeal to the Chief Judge, City

Small Causes Court, Hyderabad and the learned Chief

Judge

by his judgment held that wilful default in payment of rent

for the month

of September 1971 as also the question of

sub­

letting was proved. Against this decision of the Chief Judge, City

Small Causes, the respondents filed a revision petition in the High

Court.

It is not in dispute that the rent from September, 1971

on·

wards has not been paid and that by the time the eviction petition

was filed, the default was only for the month of September 1971. The

High Court agreed with the lower courts with regard to wilful default

for the month

of September, . 1971 and reversed the finding with

reagrd to subletting but on the ground of wilful default ordered

evic­

tion of the respondents.

In civil Appeal No. 1992 of 1982, the respondent-landlord filed

an 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

appel­

lant became a defaulter in payment oi 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 enaashed by the

respon­

dent and returned to the appellant subsequent to the filing of an evic­

tion petition which was filed on 11. 8.1978.

The Rent Controller found the tenant to

be a wilful defaulter

and consequently order

his eviction. However, on appeal the

Appel­

late Authority reversed the finding of the Rent Controller and accep­

ted the plea of the tenant· that as he was ill he was not able to pay the

rent. Jn revision, the High Court did not agree with the finding of

the Appellate Authority and restored the finding

of the Rent

Con­

troller and ordered the eviction of the appellant, holding that the

explanation offered

by the tenant could not be accepted as his sons

were carrying on the business

in the same premises and nothing

pre­

vented them from paying the rent to the landlord of the appellant was

ill.

• ._,

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s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal Ali, J.) 655

In Civil Appeal No. 1659 of 1982, the respondent-landlord filed

an eviction petition against the appellant-tenant in respect of a non­

residential premises on two grounds : (!) wilful default in payment

of rent from l.5.77 to 31.8.77, and

(2) bona fide requirement for

personal

use. The Rent Controller, after an equiry, ordered eviciion

of the tenant on both the grounds and the Appellate Authority

con­

firmed the findings of the Rent Controller. The landlord issued a

lawyer's notice on 1.9.77 to the tenant to clear up the dues. After

receipt of the notice the tenant paid the rent of two months' only and

for the remaining two months the tenant could not offer any satis­

factory explanation and, therefore, the High Court in revision agreed

with the findings

of both the courts below in regard to wilful default

of payment of arrears

of rent and ordered eviction of the tenant on

this ground alone. The High Court, however, did not agree with the

findings

of the courts below with regard to bona fide requirement of

the landlord and held that the landlord could not ask for a

non-resi­

dential portion for residential purposes having leased it out for a

non-residential purpose.

In Civil Appeal No. 3668 of 1982, the appellant took out the

premises from the respondent for non-residential use on a monthly

rent of Rs.

350. There was some misunderstanding between the

parties over payment

of rent and as a result of which it was agreed

that the tenant would deposit the rent in the Bank. The

respondent­

landlord filed an eviction petition on 1.4.1980 in the court of the

Rent Controller, after verifying from the Bank, that the tenant had

not deposited

th' rent for the months of January and February 1980,

thereby committing a wilful default. The authorities below found

against the arrangement

of depositing the rent in the Bank and

orde­

red the eviction of the appellant on the ground of wilful default. The

High Court upheld the decision of the courts below and held that

the appellant bad wilfully defaulted

in the payment of rent and

orde­

red the eviction of the appellant.

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

Septeme­

ber 1976, i.e., for a period of 9 months. But before filing the evic­

tion 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

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656

SUPREME COURT REPORTS [1985] 2 s.c.R'

Controller found that the default in payment of rent was not wilful

and therefore dismissed the application

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 be was not wilful

defaulter

as immediately after filing of the eviction petition be had paid

the entire arrears even before the serving

of summons. The High Court

held that there

was no satisfactory explanation by the tenant for

non­

payment of rent for the period from January to June 1976 before the

issue

of notice. Even after the payment of rent the tenant committed

further default till the petition for

eviction was filed on 2.11.76. The

High Court, therefore, upheld the finding

of the Appellate Authority

and ordered eviction

of the tenant on the ground of wilful default.

In civil appeal

No. 4012 of 1982, the appellant is in occupation

of the residential premises bearing No 17 (New No. 59), Burkit Road

T. Nagar, Madras on a monthly rent

of Rs. 325 payable according

to English calendar month. The respondent filed an eviction petition

against the appellant on the ground

of wilful default and bona fide

requirement for her own occupation.

It was stated on behalf of the

respondent-landlady that the appellant committed wilful default in

payment

of rent from June 1976 onwards and after repeated demands a

sum

of Rs.

1000 was paid by him on 1.4.1977. He had paid rent for

five months to the Income Tax Department on behalf of the respondent

but he did not produce any receipt evidencing payment to the Income

Tax Department. Assuming that the appellant had made the said

payment, the respondent further contended that from February 1977

to July

1978 the

appellant was in arrears, thereby committing a wilful

default. The Rent Controller did not agree with the contentions

of

the respondent and held that the default was not wilful and the

requirement for own Occupation of the landlay was not bona fide.

On

appeal, the Appellate Court came to the conclnsion that the tenant

had committed wilful default in payment

of rent from May 1976

onwards

as on 1.4.77 and from December 1976 as on

10.4.77. How­

ever, the appellate authority was of the view that the respondent had

not been able to prove her case for bona fide requirement. But, on

the ground of wilful default, the eviction of the appellant was ordered.

ln reviston, the High Court agreed with the findings of the Appel­

late Court and confirmed the eviction of the appellant on the ground

of wilful default.

From a detailed survey

of the provisions of the various Rent

Acts prevailing in the States

and various

Union Territories of our

..

s. s. PILLAI v. V. R. PATTADIRAMAN (Faza/ Ali, J.) 657

country, it appears that the provisions regarding eviction for default

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-

(!) Acts which expressly mention 'wilful default' without

defining the same,

(2) Acts which do not mention the words 'wilful default'

A IB

at all but confer a right on the landlord to evict the C

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 J Acts which use the expression 'wilful default' but in a

negative form rather than in an affirmative form.

These are the A.P. Buildings (Lease, 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 'Pondi·

cherry Act' respectively). The last category of the Acts is the Tamil

Nadu Act, which

is the

Statute in question and which makes a mar­

ked improvement by broadening the ambit of 'wilful default' in the

proviso to s. 10 (2) which is further clarified by virtue of the Expla­

nation added to the said proviso by Act No. 23 of 1973. There are

other Rent Acts which not only

use the expression 'wilful default'

but which also give a sort of a facility to a tenant even for an

ordi·

nary default to pay the entire rent together with interest, on payment

of which the suit for eviction is dismissed or, at any rate, they con­

tain provisions by which even if a suit for eviction is filed, the tenant

is required to pay the entire arrears of rent, costs and interest, failing

which his defence

is struck out and the suit for eviction is decreed

automatically.

In these circumstanees, for the purpose

of the present cases, it

is not necessary for us to make a roving enquiry into or carry on a

detailed survey

of the Acts which do not use the term 'wilful default'.

We might usefully refer only to those Acts which contain the term

'wilful default' either in a negative

or in a

positiv" form. These Acts

as already indicated, are the A.P., Orissa, Pondicherry and the Tamii

Nadu Acts. Though

we are concerned mainly with the Tamil Nadu

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658

SUPREME COURT REPORTS [1985] 2 S.C R.

Act yet in order to understand the contextual background of the

words 'wilful default' and its proper setting, we might briefly examine

the relevant provisions

of the aforesaid Acts.

Section 10 (2) of the

A.P. Act

is the only provision which confers protection to the tenant

from eviction under certain conditions. Proviso to that

sub-section

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 notwithstanding anything

in section 11, give the tenant a reasonable time, not

exceed­

ing fifteen days, to pay or tender the rent due by him to the

landlord up to the date

of such payment or tender and on

such payment or tender, the application shall be

rejected."

It may be noticed that although the default contemplated by

the Act is wilful yet it has been put in a negative form which undoub­

tedly gives sufficient leeway to the tenant to get out of the rigours

of the statutory provision. The proviso to s.7

(2J of the Orissa Act

is similarly worded and 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."

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..."

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

wh_. 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, notwithstanding anything

•

s. s. PILLAI v. v. R. PATTARIRAMAN (Fazal Ali, J) 659

contained in section 11, give the tenant a reasonable time,

not exceeding fifteen days, to pay or tender the rent due

by

him to the landlord up to the date of such payment or tender

and on such payment or tender, the application shall

be

rejected."

This proviso was clarified by an Explanation added to it by Act

No.

23 of 1973

which provides a clear criterion to determine as to

what

is wilful default and what is not.

In this connection, it was sub-

'> milted by counsel for the tenants that despite the Explanation it 1s

open to the Court on an appraisement of the circumstances of each

A

B

case to deremine whether or not the default was wilful and in doing C

so it cannot be guided wholly and solely

by the Explanation which

is merely clarificatory in nature.

If the Court in the circumstances of

each case finds that the default is not wilful then it can come to this

finding despite the Explanation. On the other hand, the argument of

the counsel for the landlords is that the very purpose of the Explana-

.'-' lion is to bring about uniformity in court decisions by laying down a

conclusive yardstick in the shape

of the Explanation which says that

a default would be wilful only if the landlord gives two months'

notice to the tenant and the tenant does not pay the rent after the ( expiry of this period. In other words, the argument seems to be th1t

the Explanation is to be read into the proviso so that the word 'wilful'

will have to

be defined and interprered in accordance with the

crite­

rion laid down by the said Explanation, i.e., 'issue of two months'

"'l notice.' The arguments merits consideration but before coming to any

conclusion it may be necessary for

us to examine the exact

mean!ng

of the words 'Wilful default' as also the interpretation and the scope

of the Proviso and the Explanation. Prima facie, there seems to be

some force in the argument

of the counsel for the tenants that unless

the conditions

of the Explanation are fulfilled, whatever may be the

nature

of the default, it cannot be a 'wilful default' as contemplated

...-J by the Proviso.

Before, however, going into this question further, let

us find

out the real meaning and content of the word 'wilful' or the words

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'wilful default'.

In the book 'A Dictionary of Law' by L.B. Curzon, G

at page 361 the words 'wilful' and 'wilful default' have been defined

thus:

'Wilful'-deliberate conduct of

a person who is a

free agent, knows what he

is doing and intends to do what

he

is doing.

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660 SUPREME COURT REPORTS [1985] 2 S.C.R.

'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.

In Words and Phrases', Volume

II 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 some­

thing 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 involun-

tary.

P. 296 -

"Wilful" refers to act consciously and deliberately

done and signifies course of conduct marked by

exercise of volition rather than which

is

acciden­

tal, negligent or involuntary.

E In Volume Ill of Webster's Third New International Dictio-

F

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nary at page 2617, the word 'wilful' has been defined thus: r

"governed by will without yielding to reason or with­

out regard to reason ; ob.stinately or perversely self-willed."

The word 'default' has been defined in Vol. I of Webster's

Third

New International Dictionary at page

590 thus ;

"to fail to fulfil a contract or agreement, to accept a ~.

responsibility ; to fail to meet a financial obligation."

In Black's Law Dictionary (4th Edn.) at page 1773 the word

'wilful' has been defined thus :

"Wilfulness" implies an act done intentionally and

designedly ; a conscious failure to observe care ; Consci0:us;

knowing ; done with stubborn purpose, but not with malice.

The word "reckless" as applied to negligence, is the

legal equivalent of "willful" or "Wanton".

s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal Ali, J.) 661

Thus, a consensus of the meaning of the words 'wilful default'

appears to indicate that default in order to

be wilful must be

inten­

tional, deliberate, calculated and conscious, with full knowledge of

legal consequences flowing therefrom. Taking for instance a case

where a tenant commits default after default despite oral demands

or

reminders and fails to pay the rent without any just or lawful cause,

it cannot be said that he

is not guilty of wilful default because such

a course

of conduct manifestly amounts to wilful default as

contem­

plated either by the Act or by other Acts referred· to above.

The next question that arises for consideration

is as to what is

the scope of a proviso and what is the ambit of an Explanation

either to a proviso or to any

other statutory provision. We shall

first take

up the question of the

mture, scope and extent of a proviso.

The

well established

rule of interpretation of a proviso is

that a proviso may have three separate functions. Normally,

a proviso

is meant to be an exception to something within the main

enactment

or to qualify something enacted therein which but for the

proviso would be within the purview

of the enactment In other

words, a proviso cannot be torn apart from the main enactment nor

can it be used to nullify

or set at naught the real object of the main

enactment.

Craies in his book 'Statute Law' (7th Edn.) while explaining

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the purpose and import of a proviso states at page 218 thus: E

"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.".

. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.)

while referring to the scope of a proviso mentioned the following

ingredients :

P. 31 '. "Provisos-These are clauses of exception or qualifica­

~1on m an Act, excepting something . out of, or qualify.

mg ~omething in, the enactment which, but for the

proviso, would be within it."

P ·

31

8 "Though framed as a proviso, such a clause may

exceptionally have the elfect of a substantive enact­

ment."

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662 SUPREME COURT REPORTS [1985) 2 S.C.R.

Sarathi in 'Interpretation of Statutes' at pages 294-295 has

collected the following principles in regard to a proviso

:-

(a) When one finds a proviso to a section the natural

presumption

is that, but for the proviso, the enacting part

of the section would have included the subject-matter of

the proviso.

(b) A proviso must

be construed with reference to the

preced­

ing parts of the clause to which it is appended.

(c) Where the proviso

is directly repugnant to a section, the

proviso shall stand and

be held a repeal of the section as

the proviso speaks the later intention of the makers.

(d) Where the section

is doubtful, a proviso may be used as a

guide to

its interpretation ; but when it is clear, a proviso

cannot imply the existence

of words of which there is no

trace in the section.

(e) The proviso is subordinate to the main section.

(f) A proviso does not enlarge an enactment except for

compelling reasons.

(g) Sometimes an unnecessary proviso

is inserted by way of

abundant caution.

(h) A construction placed

upon a proviso which brings it

into general harmony with the terms of section should

prevail.

(i) When a proviso is repugnant to the enacting part, the

proviso will not prevail over the absolute terms of a later

Act directed to

be read as supplemental to the earlier one.

(j) A proviso may sometimes contain a substantive

provi­

sion."

In the case of Local Government Board v. South Stoneham

Union,(')

Lord Macnaghten made the following observation : "I think the proviso is a qualification of the preced­

ing enactment, which is expressed in terms too general to

be quite accurate."

In lshverlal Thakore/a/ Alma~/a v. Motibhai Nagjibhai(

2

)

it was

held that the main object of a proviso is merely to qualify the main

enactment.

In Madras & Southern Maharatta Railway Co. Ltd. v.

Bezwada Municipality,(

3

)

Lord Macmillan observed thus: (I) [1909] A.C. 57.

(2) [1966] 1SCR367.

(3) AIR 1944 P.C. 71.

,

s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal Ali, J.) 663

"The proper function of a proviso is to except and to deal

with Ii case .which would otherwise fall within the general

language of the main enactment, and its effect

is confined to

that

case."

The above case was approved by this Court in Commissioner of

Income Tax, Mysore, etc. v. lndo Mercantile Bank Ltd.,(') where

Kapur,

J. held that the proper function of a proviso was merely to

qualify the generality

of the main enactment by

providing an excep­

tion and taking out, as it were, from the mnin enactment 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,(

2

)

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

enact­

ment, and ordinarily, a proviso is not interpreted as stating

a general rule."

In West Derby v. Metropolitan Life Assurance Co.(') while

guarding against the danger of interpretation

of a proviso, Lord Watson observed thus :

"a very Jangerous and certainly unusual course to

import legislation from a proviso wholesale into the body

of

the

statute."

A very apt description and extent of a provio was given by Lord

Oreburn

in Rhodda Urban District Council v. Taff Vale Railway Co.(')

where it

was pointed out that insertion of a proviso by the drafts-

man

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 something out

of or qualifying what goes before. To the same effect

is a later

decision of the same Court in

Jennings add Another v.

Kelly(

0

) where

it

was observed :

A

B

c

D

E

F

"We must now come to the proviso, for there is, I G

think, no doubt that

in the construction of the section the

(I) [1959] 2 Supp. SCR 256.

(2) [196212 SCR 159.

(3) [1897) AC 647.

(4) [1909] AC 253.

(5) [1940] AC 206.

A

B

c

D

E

F

G

H

664 SUPREME COURT llEPORTS (1985] 2. s.c.I!..

whole of it must be read and a consistent meaning if possi­

ble given to every part of it · The words are "provided that

such licence shall be granted . only for premises situate in

the ward or district electoral division in which such increase

in population has taken place". There seems to be no doubt

that the words "such increase in population" refer to the

increase

of not less than 25 per cent of the population

men­

tioned in th~ opening words of the section."

While interpreting a proviso care must be taken that it is used

to remove special cases from the general enactment and provide for

them separately.

In short, generally speaking, a proviso is intended to limit the

enacted provision

so as to except something which would have

other­

wise been within it or in some measure to modify the enacting

clause. Sometimes a proviso may be embedded in the main provi­

sion and becomes an integral part of it so as to amount to a subs­

tantive provision itself.

Apart from the authorities referre4 to above, this Court has in

a long course

of decisions explained and adumbrated the various

shades;

aspects and elements of a proviso. In State of Rajasthan

v. Leela Jain,(') the following observations were made:

"So far as a general principle of con,truction of a

proviso

is concerned, it has been broadly stated that the

function

of a proviso is to limit the main part of the section

and carve out something which but for the proviso would

have been within the operative

part."

In the case of Sales Tax Officer, Circle I, Jabalpur v. Hanuman

Prasad(2),

Bhargava, J. observed thus :

"It ·is well-recognised that a proviso is added to a

principle clause primarily with the object

of taking out of

the scope of that principal clause what is included in it and

what the legislature desires should.be excluded."

In

Commissioner of

Commercial'Taxes and Ors. v. R.S. Jhaver

and Ors.,(

3

) this Court made the following observations :

(!) ]1965] I S.C.R. 276.

(2) [1967] I S.C.R. 831.

(3)

[1968] I

S.C.R. 148.

.,_..

s. s. PILLAI v. v. R.. PATTABillAMAN (Faza/, Ali J.) 665

"Generally speaking, it is true that the proviso is an

,exception to the main part

of the section ; but it is

recog­

nised that in exceptional cases a proviso may be a substan­

tive provision itself."

In Dwarka Prasad v. Dwarka Das Saraf,(1) Krishan Iyer, J.

. speaking for the Court observed thus :

"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

harmo­

nious construction."

'' In Hiralal Rattan/al etc. v. Siaie of U.P. and Anr.(

2

)

etc. this

Court made the following observations :

"Ordinarily, a proviso to a section is intended to take

out a part

of the main section for special treatment. It is not

expected to enlarge the scope

of the main section. But cases

have arisen in which this Court has held that despite the

fact that a provision

is called proviso, it is really a separate

provision and the so-called proviso has substantially altered

the main section.''

A

B

c

D

E

F

We need not multiply authorities after authorities on this G

point because the legal position seems to

be clearly and manifestly

well established. To sum up, a proviso may serve four different

purposes:

(I)· [1976] 1S.C.R.128.

(2) [1973] l s.c.c: 216.

H

A

B

c

D

E

F

G

H

666

SUPREME COURT IlEPORfs [1985] 2 s.c.lt.

(I) qualifying or excepting certain provisions from the

main enactment ;

(2) it may entirely change the very concept of the

intend­

ment of the enactment by insisting on certain manda­

tory conditions to be fulfilled in order to make the

enactment workable ;

(3) it may be so embedded in the Act itself as to become

an integral part of the enactment and thus acquire the

tenor and colour

of the substantive enactment itself;

<""

and

(4) it may be used merely to act as an optional addenda to

the enactment with the sole object of explaining the real

intendment

of the statutory provision.

These seem to be

by and large the main purport and

para­

meters of.a proviso.

So far as the Act in question is concerned, the matter does not

rest only on the question of wilful default, but by an amendment

(Act No.

23 of 197j) an Explanation, in the following terms, was

added to the proviso to section

IO (2) of the Act :

"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."

We have now to consider as to what is the impact of the

Explanation on the proviso which deals with the question

of wilful

default. Before, however,

we embark on an enquiry into this

difficult and delicate question,

we must appreciate the intent, purpose

and legal effect

of an Explanation. It is now well settled that an

Explanation added to a statutory provision

is not a substantive

provision in any sense

of the term but as the plain meaning of the

word itself shows it

is merely meant to explain or clarify

certaie

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.

s. s. PILLAI v. v. tl. PATTABIRAMAN (Fazal Ali J.) 661

(b) It does not ordinarily enlarge the scope of the original

section which it explains,

but only makes the meaning

clear beyond

dispute."

(P. 329)

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

en1cting 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."

(P.P. 297-298.)

Bindra in

'Interpretation of Statutes' (5th Edn.) at page 67

states

th us :

"An explanation does not enlarge the scope of the origi­

nal section that it

is supposed to explain. It is axiomatic that

an explanation only explains and does not expand or add to

the scope of the original section

...... The purpose of an expla­

nation

is, however, not to limit the scope o the main

provision ...... The construction

of the explanation must

depend upon its terms,

and no theory of its purpose can be

entertained unless it

is to be inferred from the language used.

An 'explanation' must be interpreted according

to its own

tenor."

The principles laid down by the aforesaid authors are fully

supported by various authorities

of this Court. To quote only a few,

in

Burmah

Shell Oil Storage and Distributing Co. of India Ltd. and

Anr.

v. Commercial Tax

Officer and Ors.(1) a Constitution Bench

decision, Hidayatullah,

J. speaking for the Court, observed thus :

"Now, the Explanation must be interpreted according to

its own tenor, and it is meant to explain cl. (I) (a) of tP,e

(l) [196111 S.C.R. 901.

A

B

c

D

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668 SUPltEME COUllT ·REPORTS . (1985) 2 S.C.R.

Article· and not vice versa. It is an error to explain the

Explanation with the aid

of the Article, because this reverses

their

roles."

In Bihta Cooperative Development Cane Marketing Union Ltd.

and Anr. v. The Bank of Bihar and Ors(')., this Court observed thus:

"The Explanation must be read so as to harmonise with

and clear up any ambiguity in the main section.

It should

not

be so construed as to widen the ambit of the

section."

In Hiralal Rattan/al's case .(supra), this Court observed thus :

"On the basis of the language of the Explanation this

Court held that it did not widen the scope

of clause (c). But

from what has been said in the case, it

is clear that if on a

true reading

of an Explanation it appears that it has widened

the scope of the main section, effect

be given to legislative

intent notwithstanding the fact that the Legislature nammed

that provision

as an

Explanation."

D In Dattatraya Govind Mahajan and Ors. v. State of Maharashtra

E

F

G

H

and Anr(2)., Bhagwati, J, observed thus:

"It is true that the orthodox function of an explanation

is to explain the meaning and effect of the main provision to

which it

is an explanation and to clear up any doubt or

am-

biguity in it ...... Therefore, 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

consi­

derations."

Thus, from a conspectus of the authorities referred to above, it

is manifest that the object of an Explanation to a statutory provi·

sion is-

(a) to explain the meaning and intendment of the Act itself,

(b) ·;vhere there is any obscurity or vagueness in the main

enactment, to clarify the same

so

aa to make it consis­

tent with the dominant object which it seems to

subserve,

(1)

[I 967] l S.C.R. 848.

(2) [1977] 2 S.C.R. 790.

-

. s. s. PILLAI v. v. ll. PATTAnlRAMAN (Fazal Ali, J.) 669

(c) to provide an additional support to the dominant object

of the Act in order to make it meaningful and purpose­

"-')

fut,

(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 becoming an

hindrance in the interpretation

of the same.

Having, therefore, fully discussed the main scope and ambit

of

~_, , a proviso and an Explanation, we shall now proceed to elucidate the

various provisions of the Act and other Acts. We have already discus­

sed that although almost every State has its own Rent Act, neither

the Explanation nor the statutory clause concerning the term 'wilful

default'

is mcntained therein. These Acts seem to proceed only on the

simple word 'default'

and perh"aps to buttress their intention they

have laid down certain guidelines to indicate the grounds

of ejectment

wherever a default takes place. Looking generally

at such Acts, they

'• seem to have first provided statutorily a particular date or time when

the tenant on being inducted under the contract

of tenancy, is to pay

the rent.

Such a provision may or may not be against the contract of

the tenancy and

if it is to that extent, it overrides the contract. This,

therefore, gives sufficient notice to any tenant inducted in any

pre­

mises that he must pay the rent according to the yard-stick set out by

the Act, failing which he runs the risk

of being evicted for default. r.< Some Acts, however, have provided a particular number of defaults

to enable the Rent Controller

or Court to find out whether such a

default would entitle the landlord to get an order

of eviction. There

are some other Acts which have made rather ingenious and, if

we may

say so,

apt provisions for expediting the process of eviction in case of

default by providing that whenever

a suit for eviction is filed against

a tenant on the ground

of default, the tenant in order to show his bona fides must first deposit the entire rent, arrears and cost in the

,., court of the Rent Controller where the action is filed on the very

first date

of hearing, failing which the court or the authority concern-

A

B

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B

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670 SUPREME COURT REPORTS ll985j 2 S.C.R.

ed would be fully justified in striking down the defence and passing

an order of eviction then and there. The dominant object of such a

procedure

is to put the tenants on their guard. It is true that such

r-­

provisions are rather harsh but if a tenant goes on defaulting then

there can

be no other remedy but to make him pay the rent punc-

tually unless some drastic step

is taken. These Acts, therefore, strike

a just balance between the rights of a landlord and those

of a tenant.

For deciding these cases, it is not necessary 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.

r

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. l

0 (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 Y

proviso taken in conjunction with tbe Explanation.

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,

de­

fault to pay or tender rent shall be construed as wilful, if the

default

by the tenant in the payment or tender of rent con­

tinues after the issue

of two months' notice by the landlord

claimin~ the rent;"

If we analyse the various concomitants of the Explanation, the

position seems to be

that-

(a) there should be a default to pay or tender rent,

(b) the default should continue even after the landlord has

issued two months' notice claiming the arrears

of rent,

(c)

if, despite notice, the arrears are not paid the tenant is

said to have committed a wilful default and consequently

liable to be evicted forthwith.

The question

is ; do these three conditions whittle down the

effect of the proviso or merely seeks to explain the intendment

of a

wilful default?

One view which may be possible and which form the ._.

H basis of the argument of the counsel for the tenants is that mere non-

s. s. PILLAI v. v. R. PATTABIRAMAN (Faza/ Ali, J.) 671

payment of arrears of rent after issue of two months' notice cannot in

all circumstances automatically amount to a wilful default if the non­

payment does not fulfil the various ingredients pointed out by us

while defining the term 'Wilful default'. The other view which has

been canvassed before

us by the counsel for landlords is that in view

of the Explanation once it is proved that after issue of two months'

notice if the tenant does not pay the arrears within the stipulated

period of two months

he is liable to be ejected straightaway. Another

view is that such an interpretation would be extremely harsb and

penal

in nature because if, after receipt of the notice, the tenant is not

able to pay the arrears due to circumstances beyond his control, of

which the court

is satisfied, it will be putting a serious premium or

handicap on the right of the tenant. In the

same token, it was argued

that if such an interpretation

is put on the Explanation then the

entire provisions of the Proviso become

otiose thus rendering the said

Proviso nugatory.

Another aspect that must

be stressed at this stage is that where

a tenant has committed default after default without any lawful or

reasonable cause and the said defaults contain all the qualities

of a

wilful default, viz., deliberate, intentional, calculated and conscious,

should he

be given a further chance of locus paenitentiae ? After

hearing counsel for the parties at great length,

we feel that although

the question

is difficult one yet it is not beyond solution. If we

keep the objects of the proviso and the Explanation separate, there

would

be no difficulty in deciding these cases.

To begin with,

s. 13 (2) (i) of 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 circums­

tances and facts of the case was not wilful, in the sense that it did not

contain any of the qual!ties or attributes of a wilful default as indi­

cated 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,

A

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672

SUPREME COURT REPORTS (1985] 2 S.C.R

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

months' notice to his tenant for paying the arrears

of rent but the tenant continues in default even thereafter, then he is

liable to be evicted. There is a good deal of force in this argument

which has its own advantages. In the first place, it protects the court

from going into the intricate question as to what is a wilful default

and whether or not the conditions of a wilful default have been satis­

fied which,

if permitted would differ from case to case and court to

court. But the difficulty is that if such a blanket ban is put on the

court for not

exemining the question of wilful default once the con­

ditions laid down in

the Explanation are satisfied then it would un­

doubtedly lead

to serious injustice to

the tenant. A subsidiary conse­

quence

of

such an interpretation would be that even though the

tenant, after receipt

of the notice, may be wanting to pay the arrears

of rent but is unable to do so because of unforseen circumstances

like, death, accident, robbery, etc., which prevent

him from paying

the arrears, yet under the Explanntion he has to be evicted.

Another view which, in our opinion, is a more acceptable one

and flows from the actual words used by the proviso is that where

the Explanation does not apply in the sense that the landlord bas not

issued two months' notice, it will be for the Court to determine in

each case whether

the default is wilful having regard to the tests laid

down by us and

if the Court finds that default is wilful then a decree

for eviction can be passed without any difficulty.

Another difficulty in accepting the first view, viz., if two months

notice is

not given, the tenant must not be presumed to be a wilful

defaulter,

is that in such a case each landlord would have to maintain

a separate office so

that after every default a two months' notice

should be given

and if no notice is given no action can be taken

against a tenant. We are unable to place such an unreasanable res­

triction

on the landlord to give two months' notice after every default

which

may or may not be possible in every case. A correct interpre­

tation, in

our opinion, would be that where-

(I) no notice, as required by the Explanation, is given to

the tenant, the Controller or the court can certainly

examine the question whether

the default has been wil­

ful

and to such a case the Explanation would have no

application,

f--

s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal Ali, J.) 673

(2) where the landlord chooses to issue two months' notice

and the rent

is not paid then that would be a

conclu­

sive proof of the default being wilful uuless the tenant

proves his incapability

of paying the rent due to

unavoi­

dable circumstances.

The &rgument 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

con­

ditions 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

to decide if a default

is wilful or not. Indeed, if the landlord

choo­

ses to give two months' notice to his tenant and he does not pay the

rent, then, in the absence

of substantial and compelling reasons, the

controller or the court can certainly presume that the default

is wilful

and order his eviction straightaway.

We are unable to accept the view

that whether two months' notice for payment

of rent is given or not,

it will always be open to the Controller under

the proviso to determine

the question

of wilful default because that would render the very

object

of Explanation otiose and nugatory. We express our view in

the matter in the following terms : {I) Where no notice is given by the landlord in terms of

the Explanation, the Controller, having regard to the

four conditions spelt out

by us has the undoubted

dis­

cretion to examine the question as to whether or not

the default committed

by the tenant is wilful. If be

feels that any

of the conditions mentioned by us is

lacking or thatthe default was due to some unforeseen

circumstances, he may give the tenant a chance

of locus

paenitentiae by giving a reasonable time, which the

statute puts

at

15 days, and if within that time the

tenant pays the rent, the application for ejectment

would have to

be rejected.

(2) If the landlord chooses

Jo give two months'· notice to

the tenant to clear up the dues arid the tenant, does not

A

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674 SUPREME

COURT REPORTS (1985] 2 S.C.R·

pay the dues within the stipulated time of the notice

then the Controller would have no discretion to decide

the question of wilful default because such a conduct of

the tenant would itself

be presumed to be wilful default

unless

he shows that he was prevented by sufficient

cause or circumstances beyond his control

in honouring

the notice sent by the landlord.

We would, however, refer to some case law on the question of

wilful default as interpreted by the Madras High Court because there

appear to

be three decisions of the Madras High Court taking some­

what contrary

views. In Rajeswari v. Vasumal Lalchand(1) it was held

that non-payment

of rent amounted to such supine and callous

in­

difference on the part of the tenant as to amount to a wilful default.

However, the learned Judge does not appear to have noticed the

effect

of the Explanation to s.

I 0 (2) introduced in 1973. This deci­

sion undoubtedly supports the

view that a wilful default is not merely

a pure and simple default but a default

which is per se deliberate and

· intentional. In N. Ramaswami Reddiar v. S.N. Periamuthu Nadar,(2)

Explanation to the proviso to s. IO (2) of the Act was expressly con­

sidered 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 con­

siderable time and the landlord

files a petition for an order

of eviction on the basis that the tenant had committed

wil­

ful 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."

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. Manik/al

Bhatt ad,(') Ramamurti, J. has drawn a very apt and clearcut distiction

(I) AIR 1983 Madras 97.

(2) [1980] Law Weekly (vol. 93) 577.

(3) AIR 1966 Madras 67.

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s. s. PILLAI v, v. R. PATTABIRAMAN (Faza/ Ali, J.) 675

between a simple default

and a wilful default and has pointed out

that in order to be a 'wilful default' it must be proved that the

con­

duct of the tenant was such as would lead to the inference that his

omission was a conscious violation

of his obligation to pay eht rent.

In this connection,

the learned Judge observed thus :

"The decisions of this court have reportedly pointed

out that there is a clear difference in law between default

and wilful default and that non-payment of rent within the

time specified by the Act, though would

amount to default,

cannot by itself be treated as wilful default,

and that if the

rent was paid after the expiry of the time in the following

month within a short time thereafter, the default cannot

be

said to be wilful to warrant the punishment of eviction ...

Keeping in mind the main object

of the enactment,

namely, prevention

of unreasonable eviction of tenants, the

principle that emerges from the several decisions

is that for

default to be regarded as wilful default,

the conduct of the

tenant should be such as to lead to the inference that his

omission was a conscious violation

of his obligation to pay

the rent

or reckless indifference. If the default was due to

accident

or inadvertence or erroneous or false sense of

security based upon the conduct of the landlord himself,

the default

cannot be said to be wilful

default."

Having, therefore, enunciated the various principles and tests to

be applied

by courts in deciding the question of wilful default we now

proceed

to decide the various appeals filed before us. The brief facts

of each appeal have already been narrated in the opening part of

our judgment and we would like to sum up our conclusions flowing

from the facts found by the High Court in each case.

In civil appeal No. I 178 of 1984, it would appear that though

the

tenant had committed a default but he had paid the entire rent

well before the filing

of the suit by the landlord. In fact, the suit for

eviction was filed by the landlord not

on the ground of pending

arrears

but to penalise the tenant for having defaulted in the past.

Such a suit

cannot be entertained because once the entire dues are

paid

to the landlord the cause of action for filing of a suit completely

vanishes. Hence,

the suit arising

o~t of civil appeal l'j'o. 1978 of 1984

must be dismissed as being

not maintaintable and the order of

ejectment passed by the High Court is hereby set aside.

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676. SUPREME COURT REPORTS (1985] 2 S.C.R.

Jn civil appeal No. 6211of1983, baving 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.

In civil appeal No. 1992 ~f 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 30.1.78) sent a detailed reply to the landlord

and enclosed a Bank Draft

of Rs. 392 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 Pr0viso to s.

10 (2) of the Act,

by no stretch of imagmation could he he called guilty of wilful

default. On the other hand, the conduct of the landlord in filing a

suit and not encashing the Bank Draft

was motivated with a view to

get a decree for eviction on false excuse.

Such a state of affairs could

not be countenanced

by the court. In these circumstances, we are of

the opinion that the arrears having been paid through the Bank

Draft, the question

of eviction of the tenant did not arise nor did

the question

of default come into the picture merely because the

landlord wanted to harass him

by filing an eviction petition. The

High Court was, therefore, clearly in error

in passing the decree of

ejectment against the tenant. We, therefore, allow the appeal and

set aside the order

of the High Court evicting the tenant.

In civil appeal No. 1659 of 1982, as it was clearly a case of

f .•

~

•

wilful default on the part of the tenant we affirm the order of the ~.

High Court evicting the tenant and dismiss the appeal.

In civil appeal No. 3668 nf 1981, some dispute arose between

the parties as to whether the rent

was to be deposited in Bank, resul­

ting in the filing

of the present suit for eviction on 1.4.80 in the court

of the Rent Controller by the landlord after verifying from the Bank

that the tenant had

not deposited the rent for the months of January

and February

1980. This default, in our opinion, was undoubtedly ~

deliberate, conscious and without any reasonable or rational basi&

• . _,

•

s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal, Ali J.) 677

and the High Court

was perfectly right in holding that the tenant

was guilty of wilful default and passing a decree for ejectments. As

no notice was given by the landlord, Explanation to Proviso to s.

10

(2) of the Act does not apply at all. The appeal is accordingly

dismissed.

In civil appeal No.

2246 of 1982, the respondent-landladies

had let out the premises to the tenant

at a monthly rent of Rs.

105.

A petition for eviction was filed by them on 2.1I.76 for non-payment

of rent by the tenant from January 1976 to September 1976, a period

of 9 months. But, we might state here that before filing the eviction

petition, the respondents had issued a notice

on 6.7.76 asking the

tenant to

pay the dues, which the tenant paid on 17 7.76, i.e., within

10 days of the receipt of the notice, which was accepted by the

landladies without any prejudice. The Rent Controller held that the

default

was not wilful as in pursuance of the notice the payment had

already been made. The Appellate Authority reversed the finding of

the Rent Controller and held that the default was wilful. The High

Court in revision upheld the order of eviction on 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 inter­

national. 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 Gigh Court. We, therefore, allow the appeal and

set aside the order

of the High Court directing eviction of the tenant.

In civil appeal No.

4012 of 1982, the tenant occupied the pre­

mises at a monthly rent of

Rs. 325. It appears that the tenant defaul­

ted

in payment of tent from June 1976 onwards and after repeated

demands, only a sum

of Rs.

1000 was paid by him on 1.4 77, leaving

a substantial balance

of arrears unpaid. The plea of the tenant that

be had made payments to the Income Tax Department has not been

proved, nor did the tenant have any right under the contract to pay

any amount to the Income Tax Department and if he did

so on his

own, he must

be held responsible for his conduct. Even so, the land­

lord contended that right from February

1977 to July 1978, the

appellant

was in arrears without any lawful cause. This was, there­

fore, a clear case

of

wi!fol default where the tenant did not pay the

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678 SUPREME COURT REPORTS [1985) 2 S.C.R.O

rent deliberately, consciously and intentionally. In these circumstan­

ces, the High Court was fully justified in holding that the default

was wilful and affirming the decree passed by the Appellate court.

The appeal is accordingly dismissed.

The result

is that all the appeals are disposed of as indicated

above

but in the circumstances there will be no order as to costs in

any

of the appeals. Civil Appeal No. 5769 of 1983 already stands

disposed

of in terms of our

Order of September 12,1984.

SABYASACHI MuKHARJI, J. With great respect to my learned

brothers, I regret I

am unable to agree on the construction put on

the expression 'wilful default' in the Explanation

to the Proviso of

sub-section (2) of section

10 of The Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960. It may be borne in mind that The Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter

called

the 'Act' was an Act to amend and consolidate the law relating

to the regulation of letting of residential and non-residential buildings

and the control

of rents of

such buildings and the prevention of

unreasonable eviction of tenants therefrom in the State of Tamil

Nadu. The Act was from time

to time amended and was last

amen­

ded by Act I of 1980. By Act 23 of 1973, an Explanation was added

to the Proviso to sub-section (2) of section 10 of the Act.

Section 10 of the Act deals with the eviction of tenants. In

•

order to appreciate the scheme of the section and the meaning of

the expression 'wilful' introduced by the Explanation to the

Proviso

of sub-section (2) of section

10, we have to examine the

provisions of section 10 and the various sub-sections of the section.

As mentioned herein before section 10 deals with the eviction of

tenants and postulates that a tenant shall not be evicted whether in

execution

of a decree or otherwise except in acc0rdance with the

provisions

of section

10 or sections 14 to 16. For these apprnls we

are

not concerned with the provisions of sections 14 to 16.

.->,

The first Proviso to sub-section (I) 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 perma­

nent 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

j.j,

the Court may pass a decree for eviction on any of the ~rounds

••

•

s. s. PILLAI v. v. R. PATTAB!RAMAN (S. Mukharji, J.) 679

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

show­

ing cause against the application, is satisfied with any of the various

conditions which are stipulated in clause (i), (ii), (iii), (iv), (v), (vi)

and (vii)

then he shall make an order directing the tenant to put the

landlord in possession

of the building and if the Controller is not

satisfied, he shall make an order rejecting the application. The

Proviso

to sub-section (2) of section

10 is as follows:

"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, notwithstanding

any­

thing contained in section 11, give the tenant a reasonable

time, not exceeding fifteen days, to pay

or tender the rent

due by him to the landlord up to the date of such.payment

or tender and on such payment or tender, the application

shall be

rejected."

The Explanation which was added by Act 23 of 1973 to the

said Proviso stipulates that 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. It is this

Explanation

that falls for consideration in these appeals. Clause (i)

of sub-section (2) of section

IO of the Act requires the Controller to

be satisfied that the tenant has not paid or tendered rent due by him

in respect

of the buiJ ding within fifteen days after the expiry of the

time fixed in the agreement

of the tenancy with his landlord or in the

absence

of any such agreement, by the last day of the month next

following that for which the rent

is payable. For the purpose of

these appeals, it is not necessary to consider the grounds of eviction

mentioned in other clauses

of sub-section (2) of section

IO of the

Act. If the Controller is satisfied of any of the grounds mentioned

in clause

(i) to clause (vii) of sub-section (2) of section

10, then the

shall, so the section stipulates, make an order directing the tenant to

put the landlord in

possessioo of the building and if he is not so

satisfied, he shall make an order rejecting the application ; the Proviso

prvides

that in any case falling under clause (i) which we have noted

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680 SUPREME COURT REPORTS (1985) 2 S.C.R.

herein before, if the Controller is satisfied that the tenant's default to

pay or tender rent was not wilful, he may, notwithstanding anything

contained

in section 11, give the tenant a reasonable 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 Explana­

tion which

is the subject matter of interpretation before us and which

was added, as noted before, by Act 23 of 1973 by section

JO,

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 const­

rued 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,

wiU 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.

As I read the provision, it appears to.me that there must be

satisfaction of the Controller whether default was wilful and a default

will be construed as wilful, in my opinion, only where the landlord

has given notice and two months have expired without payment

of

such rent. Default has been construed in various ways depending

npon the context. 'Default' would

seem to embrace every failureto

perform part of one's contract or bargain.

It is a purely relative

term like negligence.

(See in this ccnnection Stroud's Judicial.

Dictionary

Vol. I, Third Edition, page 757). It means nothing more,

nothing

less, than not doing what is reasonable under the circum­

stances ; not doing something which yon ought to do, having regard

to the transaction. Similarly, default in payment imports

some·

thing wrongful, the omission to do some act which, as between the

parties, ought to have been done

by one of them. It simply means

non-payment, failure or omission to pay.

(See

Prem's Judicial

Dictionary, Vol. I, 1964 page 483). Earl Jowitt defines 'default' as

omission of that which a man ought to do.

(See The Dictionary of

English Law. page 597).

The

Privy Council in the case of Fakir Chander Dutt and Others

J

'•

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--·

...

S.S. PILLAI v. V. R. PATrABIR,Vf'.N (S. M"kha,ji, J.) 681

v. Ram Kumar Chatteiji(') observed that 'Default' did not necessarily

mean breach

of contractual obligation, but simply non-payment of

rent by a person capable of protecting his tenure by doing so.

Default happens in payment of rents under various

contingen­

cies and situations. Default is a fact which can be proved by

evidence. Whether the default

is wilful or not is also a question of

fact to be proved from evidence, direct and circumstantial, drawing

inferences from certain conduct.

If the Courts are free to decide

from varying circumstances ·whether default was wilful or not,

then divergence

of conclusions are likely to arise, one judicial autho-

rity coming

to the conclusion from certain circumstances that the

A

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default was wilful, another judicial authority coming to a contrary C

conclusion from more

or less

·same circumstances. That creates

anomalies. In order to obviate such anomalies and bring about a

uniform standard, the explanation

as I read, explains the expression

'wilful' and according to

the Explanation added, a default to pay or

ten~er rent "shall be construed", as wilful if the default 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

nollce 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

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 there

is chronic default, regular defaults

or habitual defaults, the two months' notice is necessary or not. It

was the argument on behalf of the respondents that in those

circum­

. stances such notice was not necessary and this is the view which has

found acceptance by

my learned Brethren: I am unable to agree,

(I) Indian Appeals, Vol. xxxr, p. 195.

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682 SUPRBMB COURT REPORTS [ 1985] 2 s.c.R..

with respect. If in c1~es where there are genuine and bona fide

reasons for failure or non-payment of rent which cannot be excused

after two months' notice to pay rent, then other causes which lead

to inference of wilful default cannot also

be construed as 'wilful

default'

in the context of the Explanation. The legislature has

provided

an absolute and clear definition of 'wilful default'. Other

circumstances cannot

be considered as wilful default.

[n

my opinion, the expression

"shall be construed" would

have the effect

of providing a definition of wilful default in the

proviso to sub-section

(2) of section

10.

If a definition is provided of an expression, then the Courts are

not free to construe the expression otherwise unless it

is so warranted

by the

use of the expression such as

"except otherwise provided or

except

if the context otherwise

indicates". There is no such expression

in the instant case. There may be in certain circumstances intrinsic

evidence indicating otherwise. Here there is none.

The whole scheme of section 10 is that in order to be entitled

to eviction on the ground

of arrears of rent, the ingredients of which

the Controller must

be satisfied are ; (a) default; (b) default was

wilful. Whether in a particular case default is wilful or not, must be

considered in accordance with the definition provided

in the Explana­

tion to

Proviso to sub-section (2) of section I 0 of the Act. If it was

intended that the Courts would be free to judge whether in a particu­

lar set up of facts, the default

was wilful or not where no notice has

been given, then

in such a case there was no necessity of adding this

Explanation to the

Proviso which is a step to the making of the

findings under clause (I of sub-section (2) of section 10 ofthe Act.

It is well-settled that the Legislature does not act without purpose or

in futility.

It was contended on behalf of the landlords that the Legislature

has not

used the expression default to pay or tender rent shall be

construed as wilful only if the defauit by the tenant 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.

s. s. PILLAI v. V, R. PATfABIR~\IA'I cs. Mu'cha,ji, J.) 683

As I read the E~plan1tion it is not 30 necessary because Legis­

lature has defined 'wilful default' 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.

ft is true that there may be hardships and many problems

might arise.

I share the apprehension of these problems and

hard­

ships 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 the

difficulties and divergence of judicial opinions depending upon

vary­

ing circumstances, the legislature has provided a uniform definition

to the concept

of 'wilful default'. It is true that where two

construc­

tions are possible, one which avoids anomalies and creates reasonable

results should be preferred but where the language is clear and where

there is a purpose that can be understood and appreciated for

construing in one particular manner, that

is to say, avoidance of

divergence of judicial opinions in construing wilful default and

thereby avoiding anomalies for different tenants, one judge taking a

particular view on the same set

of facts, another judge taking a

different view on the same set

of facts, in my opinion, it would not

be proper in such a situation to

say that this definition of wilful

default

was only illustrative and not exhaustive. I cannot construe

the expression used in the Explanation

to the

Proviso to sub-section

(2) of section 10 as illustrative when the Legislature has chosen to

use the expression "shall be construed".

It has been observed that statutory provisions must be so

construed,

if it is possible, that absurdity and mischief may be

avoided. Where the plain and literal interpretation

of a statutory

provision provisio produces

a manifestly absurd and unjust result,

the Court might modify the language used

by the legislature or even

do some violence to it so as to achieve the obvious intention of the

legislature and produce rational construction and just results.

(See v.

in this connection the observations in the case

of Bhag Mal

Vs.

Ch. Prabhu Ram and Others (Civil Appeal No. :451 (NCE) of 1984).

Lord Denning in the case

of

Seaford Court Estates Ltd v. Asher(')

has observed :

"If the makers of the Act had themselves come across this

1. [1949] 2 All E.R. 155 a 164 (CA).

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684 si:JPREME COURT REPORTS [19851 2 s.c.R..

ruck in the texture of it, how would they have straightened i

out

? He must then do as they would have done. A judge must

not alter the material of which it

is woven, but he can and

should iron out the

creases."

Ironing out the creases is possible but not re-writing the langu-

.•

age to serve a notion of public policy held by the judges. Legislature .i

must have legislated for a purpose by Act 23 of 1973 and used the {'

expression "shall be construed" in Explanation in the manner it did.

The

fact that in interpreting the statntory language, judges

should avoid policy as an approach

was emphasised by Lord Scarman

in the decision of the House

of Lords in the case of Regina v.

Barnet London Borough Council Exparte Ni/ish

Shah.(') User of policy

in interpretation

of statutory language, Lord Scarman observed, was

an impermissible approach to the i.nterpretation 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.

In the case of

Carrington and

Others v. Therm-a-Stor-Ltd,(') 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 bad

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 a

legal remedy or may simply have failed to

realise that the situation could ever arise. This

is not to say that

statutes are to

be construed in blinkers or with narrow and legalistic

literalness, but only that effect should given to the intentions

of

Parliament as expressed in the statute, applying the normal canons of

construction for resolving ambiguities or any lack or

clarity."

I. 1983 (2) Weekly Law Reports, 16 at 30.

2. 1983 (I) Weekly Law Reports 138 at 14l.

• ->,

""

s. s. PILLAI V, v. R. PATTABIRAMAN cs. Mukharji J.) 685

Tn the aforesaid view of the matter, I would construe the

expression 'wilful defavlt' in the Explanation to Proviso to sub­

section (2) of section IO of the Act in the manner I have indicated.

In that view of the matter, I would decide the appeals accordingly,

that

is to say, I would agree with my learned brethren in the order

passed in those cases where eviction orders have been passed after

two months' notice had been given and there was continuance

of

default by the tenant thereof. Appeals which have been disposed of

on the basis of wilful default as understood in the

m1nner indicated

in the aforesaid observations

of mine, l respectfully agree. Appeals

which have been disposed

of on wilful default other than in the

manner l have indicated hereinbefore, I respectfully differ. The

individual appeals are

diiposed of accordingly. There will be no order

as to costs.

M.L.A.

Appeals

dfrmissed.

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