Ramalakshmi v. Therasmari Santha — 1996 DIGILAW 1079 (MAD)

Judgment : The landlady who succeeded before the Rent Controller but lost before the appellate authority is the petitioner in this revision. .2. The landlady filed R.C.O.P. No. 15 of 1989 on the file of the Additional District Munsif/ Rent Controller, Ambasamudram, for eviction of the tenant on the ground of wilful default in payment of rent from January, 1989. According to the landlady, in spite of the notice, the rent was not paid by the tenant and that the tenant has sent a reply containing false allegations. The tenant contended that the property originally belonged to one Ulagammal and that the present landlady has purchased it by sale deed dated 24. 1987. The tenant further contended that she has paid ah advance of Rs.5,000 to Ulagammal and that at the time of sale, it was agreed that the tenant should continue to pay the original rent of Rs.50 and that the advance should only be refunded when the tenant vacates the property. The learned Rent Controller allowed the petition and ordered eviction holding that the tenant has not proved the payment of rent and therefore, she has committed wilful default. The tenant took the matter in appeal in A.C.No.23 of 1992 on the file of the Appellate Authority/ Subordinate Judge, Ambasamudram. The learned Appellate Authority allowed the appeal. It also went into the question whether the rent is Rs.50 or Rs. 120. Hence the revision by the landlady. 3. I have heard the arguments of Mr.K.Chandrasekaran for the petitioner/ landlady and Mr.P.Pappin Fernando for the respondent/tenant and perused the pleadings and the documents. 4. Mr.K.Chandrasekaran submitted that once the tenant has admitted that she was asked to pay the rent regularly and that her advance amount would be refunded at the time of vacating the premises, it is incumbent on her to prove the payment of rent and that the invocation of Sec. 114 of the Evidence Act is unwarranted. .5. It was contended before the Appellate Authority by the tenant that the landlady is not in the habit of issuing receipt for the payment of rent and that receipt was also not insisted upon because of the near relationship between the parties. There is no cause of action for the landlady to file the petition for eviction. .5. It was contended before the Appellate Authority by the tenant that the landlady is not in the habit of issuing receipt for the payment of rent and that receipt was also not insisted upon because of the near relationship between the parties. There is no cause of action for the landlady to file the petition for eviction. Since the landlady has also not produced the counter-foil of the rent receipts even though she deposed that she is in possession of the same and that she can produce the same, an adverse inference could be drawn against the landlady. Therefore, according to the tenant, the onus of proof that the tenant is in arrears is only on the landlady. This apart, the landlady is duty bound to adjust the rent from and out of the advance amount of Rs.5,000 and therefore, there is no question of the tenant being in arrears of rent. The Rent Controller has failed to take this into account. Ulagammal, the previous owner of the property in her evidence as R.W.2 has deposed that the rent for the building is only Rs.50, that she has received a sum of Rs.5,000 from the tenant by way of advance, that she sold the property to the present landlady for a sum of Rs. 13,500, that out of this sum, she received only Rs.8,500 and requested the vendee (present landlady) to retain a sum of Rs.5,000 and refund the same to the tenant when she vacates the property and that the present landlady and her husband have undertaken to refund the sum of Rs.5,000 to the tenant at the time of her vacating the premises. 6. On the above contentions, the following points arise for consideration: .(i) Whether a sum of Rs.5,000 was retained by the present landlady while purchasing the property? .(ii) Whether the tenant has paid the rent regularly as contended by her? (iii) Whether the tenant has committed wilful default in payment of rent? 7. Points 1 to 3: It is the case of the tenant that the real consideration for the sale deed Ex.R-3, dated 24. 1987 is Rs. .(ii) Whether the tenant has paid the rent regularly as contended by her? (iii) Whether the tenant has committed wilful default in payment of rent? 7. Points 1 to 3: It is the case of the tenant that the real consideration for the sale deed Ex.R-3, dated 24. 1987 is Rs. 13,500 and not Rs.8,500 as recited in it, that a sum of Rs.5,000 was retained by the purchaser/ landlady and that therefore, even if the tenant is in arrears of rent, the landlady should have adjusted the dues from and out of the advance amount of Rs.5,000. The contention of the tenant is unacceptable. The Appellate Authority, in this connection, has failed to note that Sec.92 of the Evidence Act is a clear bar for the tenant to plead that the real consideration for the sale deed Ex.R-3 is only Rs. 13,500 and not Rs.8,500 as recited in it. In this regard, the Appellate Authority has failed to note that the evidence of R.Ws. 1 and 2 cannot at all be relied upon. .8. R.W. 1 is the tenant herself and R.W.2 is the previous owner who sold the property to the present landlady. The husband of the present landlady is the brother of R.W.2 and that the landlady is her aunt’s daughter. A Division Bench of this Court in the decision reported in K.S. Narasimachari v. The Indo Commercial Bank Limited, A.I.R. 1965 Mad. 147, has held that no oral evidence is admissible to prove variation of consideration. As already seen, in Ex.R-3, the sale consideration has been mentioned as Rs.8,500. Therefore, it is not open to the tenant or the previous owner Ulagammal to let in any oral evidence to prove variation of consideration, which is inadmissible in law. According to Sec.92 of the Evidence Act, no evidence of any oral agreement or statement can be admitted as between the parties thereto, for the purpose of contradicting, varying adding to or subtracting from the term of consideration. This will indeed be clear if one closely examines the terms of Proviso I to Sec.92 of the Evidence Act. Want or failure of consideration must be such as to invalidate the document. That would mean that there should be total lack of consideration before the term of the document in that regard is contradicted. This will indeed be clear if one closely examines the terms of Proviso I to Sec.92 of the Evidence Act. Want or failure of consideration must be such as to invalidate the document. That would mean that there should be total lack of consideration before the term of the document in that regard is contradicted. Therefore, to say that the consideration recited in the document is but a part of a larger consideration which is not specified in it, will amount to nothing less than contradicting the very term as to consideration for the document. Therefore, I am unable to accept the case of the tenant that a sum of Rs.5,000 was retained by the landlady and therefore, the landlady should have adjusted the arrears of rent, if any, from and out of the said advance amount of Rs.5,000. I have gone through the evidence of R.Ws.1 and 2, which in my opinion is artificial and unbelievable. The case set up by the tenant and the previous owner of the property is concocted and cannot be accepted. .9. It is settled law that it is incumbent on the part of the tenant to prove payment of rent. In this case, not a single document or receipt has been filed by the tenant to prove the payment of rent. The tenant has filed Exs.R-1 toR-5.Ex.R-1 dated 13. 1987 is the letter received by the tenant from the Life Insurance Corporation. Ex.R-2dated 3. 1987 is the notice sent by the Life Insurance Corporation to the tenant Ex.R-3 dated 24. 1987 is the registration copy of the sale deed or Rs.8,500. Ex.R-4 dated 29. 1989 is the notice sent by the previous owner Ulagammal to one Velmurugan. Ex.R-5 dated 10. 1989 is the reply sent by Velmurugan to Ulagammal. Not a single receipt or any other document has been filed or marked on the side of the tenant to prove that the tenant has paid the rent. It is settled law that it is for the tenant to prove that there was valid reason for not paying the rent in time so as to escape from eviction. It is her duty to pay the rent within time and she alone can explain the same. The explanation given in this case by the tenant while she was examined as R.W. 1 is not at all convincing. It is her duty to pay the rent within time and she alone can explain the same. The explanation given in this case by the tenant while she was examined as R.W. 1 is not at all convincing. The explanation offered by the tenant and the previous owner Ulagammal in regard to the advance amount of Rs.5,000 alleged to have been retained by the landlady was not accepted by the Rent Controller. Once the explanation of the tenant is not accepted, the law presumes, the default is wilful. Therefore, the finding of the Rent Controller is correct on the ground of wilful default. The Appellate Authority, in my opinion, reversed the well considered finding of the Rent Controller, which is quite contrary to the many rulings of this Court on the said question. Once the explanation put forward by the tenant cannot be accepted on her own showing, the finding of the Appellate Authority is to be reversed. I, therefore, hold that the tenant is liable to be evicted on the ground that she has committed wilful default in paying the rent. 10. The Appellate Authority has failed to see that it is incumbent on the part of the tenant to prove the payment of rent. The Appellate Authority has held that the nonproduction of the counterfoil of the rent receipt by the landlady is fatal. At the same time, the Appellate Authority has failed to note that it accepts the fact that rent receipts have been given for payment of rent. If so, it is the duty of the tenant to produce them into Court to prove the payment of rent. The Appellate Authority, in my opinion, has unnecessarily undertaken the task of arriving at the correct rent viz., Rs.50 or Rs. 120 per month. As rightly contended by the learned counsel for the landlady, this aspect of the question of the rent payable is unnecessary for determination of the point at issue because of the admitted fact. The case of the tenant is that the alleged payment of advance of Rs.5,000 which according to the landlady is false, is repayable only on the tenant vacating the premises. So, according to the landlady, even if the tenant does not absolve her liability to pay the rent, the rent advance cannot be adjusted towards the rent due. The case of the tenant is that the alleged payment of advance of Rs.5,000 which according to the landlady is false, is repayable only on the tenant vacating the premises. So, according to the landlady, even if the tenant does not absolve her liability to pay the rent, the rent advance cannot be adjusted towards the rent due. Therefore, the finding of the Appellate Authority that the landlady should have adjusted the rent from and out of the advance amount of Rs.5,000 is wholly incorrect and also against the arrangement between the parties. .11. It is the case of the tenant that she discharged the rent till the end of August, 1989, at the rate of Rs.50 per month, and at the time of sale it was agreed that she may continue to be the tenant by paying a rent of Rs.50 per month and that when she vacates, the advance would be repaid. Even according to her, the contract is, that the tenant should pay the rent regularly. In this case, as already noticed, there is no acceptable evidence on the part of the tenant to prove that the sum of Rs.5,000 was retained as advance. The tenant has also miserably failed to prove payment of rent every month. There is no documentary evidence to prove the same. This apart, the evidence let in on the side of the tenant is not only artificial but also unbelievable and concocted on the question of retention of the advance amount of Rs.5,000 and payment of rent regularly. It is settled by a catena of decisions of this Court that the tenant is bound to pay the rent regularly unless there is a contract to the contrary. In this case, in the absence of any documentary proof for payment of rent, it has to be held that the tenant has committed wilful default in payment of rent regularly. No other contract or agreement or arrangement between the parties to pay the rent otherwise has been proved. Therefore, I hold that the tenant, who has committed wilful default in payment of rent is liable to be evicted. 12. For the foregoing reasons, the civil revision petition is allowed, the order of the Appellate Authority is set aside and that of the Rent Controller is restored. However, there will be no order as to costs.