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1999 DIGILAW 455 (MAD)

N. Natwajan v. S. Srinivasan

1999-04-21

M.KARPAGAVINAYAGAM

body1999
Judgment :- Natarajan, the petitioner herein is the landlord. Aggrieved by the order of the Appellate Authority setting aside the order of eviction in the petition in R.C.O.P. No. 3516 of 1988 on the file of XI Judge, Court of Small Causes, Madras, filed by the petitioner under Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act, on the ground of wilful default, the landlord has filed this Civil Revision Petition. 2. According to the petitioner/landlord, the tenant, respondent herein has defaulted in payment of rent from November 1986 to September 1988. According to the tenant, the respondent herein, the entire rent has been paid at the rate of Rs. 52/- which was fixed by the Appellate Authority as fair rent, even before filing of the Rent Control Original Petition, on 17.11.1988 and as such, there is no Cause of action. 3. On a careful consideration of both oral and documentary evidences adduced by both the parties, the Rent Controller concluded that there is no acceptable proof to show that the entire arrears of rent have been paid to the landlord and as such, the tenant is liable to be evicted on the ground of wilful default. The Appellate Authority, while setting aside the order of eviction passed by the Rent Controller would conclude that Ex. P-6, the notice sent by the tenant to the landlord, which was filed by the landlord himself would show that the disputed arrears of rent of Rs. 810/- was paid on 17.11.1988 and that admittedly, the petition for eviction was filed on 2.12.1988. 4. Mr. S.D. Balaji, the learned Counsel appearing for the petitioner landlord, while assailing the order of the Appellate Authority, would strenuously content that the conclusion arrived at by the Appellate Authority is palpably wrong, inasmuch as the Appellate Authority relied upon Ex. P- 6 in which it is stated by the tenant that the disputed amount of Rs. 810/- the rental arrears, was already paid to the landlord in cash, whereas the very case of the landlord is that the plea of the tenant made in Ex. p-6 that Rs. 810/- was already paid is false. 5. When this matter came up for hearing on 16.4.1999, the counsel for respondent was absent. So, the matter was adjourned twice. 810/- the rental arrears, was already paid to the landlord in cash, whereas the very case of the landlord is that the plea of the tenant made in Ex. p-6 that Rs. 810/- was already paid is false. 5. When this matter came up for hearing on 16.4.1999, the counsel for respondent was absent. So, the matter was adjourned twice. Today also, the counsel for respondent is absent Therefore, this order is passed after hearing the submission made by the counsel for the petitioner and on perusal of the records. 6. In my view, the order of Appellate Authority suffers from grave illegality, in view of the fact that the plea of the tenant that Rs. 810/- was already paid as arrears of rent, has not been proved by the tenant by adducing any documentary evidence. It is the usual practice that whenever the rents are paid, the tenant used to pay through money order or through demand draft. Never in the practice, the landlord used to get the rent by cash. This aspect of the evidence adduced by P.W.I, landlord had not been cross-examined. Therefore, the tenant has to prove this aspect by independent evidence. The tenant has to establish the said fact that the sum of Rs. 810/-has been paid already as arrears of rent and the same has not been done in this case. 7. It is brought to my notice the decision in the case of A.S. Mohamed Yosuf v. AK, Anwar Basha (1990 (2) R.C.J. 64 = 1990-1-L.W. 111), wherein it is held that in a case filed on the ground of wilful default when the defence of the tenant is that the rent has already been paid, the tenant has to prove the said fact by acceptable evidence. While referring the judgment in the case of Maruthachala Udayar v. Dandapani reported in 93 L.W. 59 equivalent to 1980 (1) M.LJ. 169 would refer to the following observation: “Where a wilful default in the payment of rent as alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the payment of rents, the Court cannot ignore the implication of Section 8, to assess the controversy without reference to such implication. 169 would refer to the following observation: “Where a wilful default in the payment of rent as alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the payment of rents, the Court cannot ignore the implication of Section 8, to assess the controversy without reference to such implication. In the absence of proof of payment of rent, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rent, and the landlord must have declined to issue the receipt.” In the light of the above principles laid down by this Court, if we look at the materials available on record, it could be very well concluded that the tenant has not proved his plea that the disputed amount of Rs. 810/- was paid in cash. In this context, it is relevant to note that there is exchange of notices during the relevant period. Therefore, it cannot be presumed that the tenant has paid the rent in cash even without getting any receipt. As already indicated the tenant all along used to pay the rental arrears only either through demand drafts or through money order. In respect of the disputed amount, it is not established that the amount was sent through money order or demand draft. But, it is the specific case of the tenant as admitted in Ex. P-6 notice that it was sent by cash. If that is so, the tenant ought to have obtained a receipt for the same and produced before the Rent Controller. No such receipt is produced. In the light of these factors, I am not able to agree with the conclusion arrived at by the Appellate Authority. 8. On a perusal of the judgment of the Rent Controller, it is clear that there are proper reasonings to arrive at a conclusion that the tenant has defaulted in making payment of arrears of rent. Therefore, the order impugned order by the Appellate Authority is liable to be set aside and accordingly, the same is set aside. The order passed by the Rent Controller is restored. Consequently, this Civil Revision Petition is allowed.