Sainabai Ammal v. Krishnamurthy — 1999 DIGILAW 551 (MAD)

Judgment :- The tenant is the revision petitioner. The respondent/landlord sought her eviction on the ground of wilful default in the payment of rent from January, 1993 till November, 1993. The case of the landlord was as follows:— The revision petitioner became his tenant on a monthly rental of Rs. 400 in the year 1987. The tenant did not pay the rent regularly and the hand-book maintained by her would prove the same as also the fact that the monthly rent is Rs. 400/-. Whenever the tenant paid the rent, she used to get the signature of the landlord in the said handbook. She was wantonly and wilfully withheld the rent and she is a chronic defaulter. In spite of repeated demands, she did not pay the rent arrears and the petition for eviction came to be filed. Since the landlord was demanding payment of rent by the tenant, she filed a suit O.S. No. 885/93 with false and untenable allegations. 2. The tenant resisted the petition for eviction inter alia contending as follows: She became a tenant in the year 1987 on a monthly rent of Rs. 100/-. The rent was raised to Rs. 200/- from 1990 by mutual consent. The rent used to be collected from the tenant either by the landlord or his son Dhandapani. No receipt used to be issued to her by the landlord for the payment of rent. There was no hand-book maintained as alleged in the petition and it is only an invention by the landlord to evade his liability to issue rent receipts. The landlord refused to receive the rent from the tenant from May, 1993. Since the landlord failed to turn up to receive the rent for May and June 1993, the tenant sent a money order to the landlord on 14-6-1993 representing the rent for May, 1993. The landlord refused to receive the money order. Again on 5-7-1993 she sent a money order for Rs. 400/- representing the rent for May and June 1993/This was also refused by the landlord. Thereafter, the landlords son Dhandapani came to her house and collected the rent for the months of May and June, 1993 and also issued a receipt in her favour Dhandapani has also stated in the receipt issued that there was no arrear of rent by her to the landlord from 1987 to 1993 June. Thereafter, the landlords son Dhandapani came to her house and collected the rent for the months of May and June, 1993 and also issued a receipt in her favour Dhandapani has also stated in the receipt issued that there was no arrear of rent by her to the landlord from 1987 to 1993 June. The receipt issued by Dhandapani would bind the landlord. The landlord himself collected the rent directly from her for the months of July and August, 1993. Thereafter, neither the landlord nor his son turned up to collect the rent from her for the months of September and October, 1993. She therefore sent a money order on 9-11-1993 to the landlord representing the rent for September and October, 1993. Having refused the money order, the landlord had rushed to the Court stating that she was a chronic defaulter. She was dragged to Thiruppapuliyur Police Station at the instance of the landlord and her signature was obtained in blank papers and stamp papers. Since the landlord attempted to take forcible possession of the property from her in the first week of November, 1993, she was constrained to file a suit in O.S. No. 885 of 1993 before the Principal District Munsif, Cuddalore for permanent injunction restraining him from disturbing her peaceful possession and an interim injunction was also granted against the landlord and the rent claimed at Rs. 400/- per month is false. She had not committed any default. She was also not a chronic defaulter. Only the landlord refused to receive the rent. She tendered the rents for the months of September and November, 1993 totalling to Rs. 600/- to the landlords counsel on 8.12.1993 and this was also refused by him. The eviction petition was liable to be dismissed. 2(a). The Learned Rent Controller accepted the case of the landlord and by his order dated 10.2.1995 directed eviction granting the tenant two months time to vacate the premises. The appeal by the tenant in R.C.A. No. 4 of 1995 was dismissed by the appellate authority on 27.11.1998. As against this, the present revision petition has been filed. 3. The landlord filed a caveat and was also represented by counsel. By consent, the main Civil Revision, Petition itself was taken up and heard. 4. Mr. The appeal by the tenant in R.C.A. No. 4 of 1995 was dismissed by the appellate authority on 27.11.1998. As against this, the present revision petition has been filed. 3. The landlord filed a caveat and was also represented by counsel. By consent, the main Civil Revision, Petition itself was taken up and heard. 4. Mr. R. Gururaj, learned counsel for the revision petitioner, vehemently contended that the authorities below have failed in their duty to fix the quantum of rent whether it was Rs. 400/- as claimed by the landlord or Rs. 200/- as claimed by the tenant and the whole proceedings are vitiated and null and void. The learned Counsel further submitted that its per Section 8(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended by Act 23 of 1973 (hereinafter referred to as the Act) every landlord is bound to issue receipts and in the instant case the landlord had not issued receipts and the authorities below have not stated about this or the false plea by the landlord that he had signed in a hand-book maintained by the tenant and in the absence of finding that the maintenance of a hand-book was true, the authorities below ought to have held that the landlord had committed a wrong in not complying with the mandatory statutory provision and on this ground, he should have been refused relief. Again, there were several money orders sent to the landlord and he had refused to receive them and this would also disentitle him to any relief. According to the learned Counsel the landlord was taking advantage of the non-issue of receipts. The learned Counsel also found fault with the authorities below in rejecting Ex. B-5 receipt issued by the landlords son on the basis of some innocuous mistakes in the evidence of R.W.1. The authorities below overlooked that if really the tenant was in arrears of rent, he would not have filed an application under Section 11 (3) of the Act. This application ought to have been taken up by the authorities below. The authorities below erred in not applying the ratio of the decision in Sundaram Pillais case (AIR 1985 S.C. 583). The authorities below overlooked that if really the tenant was in arrears of rent, he would not have filed an application under Section 11 (3) of the Act. This application ought to have been taken up by the authorities below. The authorities below erred in not applying the ratio of the decision in Sundaram Pillais case (AIR 1985 S.C. 583). The further contention of the learned counsel is that the Act is a social legislation and when there is doubt as to whether the tenant has committed wilful default or not, it should be interpreted in favour of the tenant and he must be protected. The authorities below further erred in overlooking the subsequent conduct of the tenant in regularly depositing the amount into court. The learned Counsel relied on a number of decisions and they will all be referred to in the course of the order. 5. Mr. RG. Annamalai, learned counsel for the landlord/respondent, submitted that the authorities below have found against the tenant on all counts. No reason is shown for withholding the rent of Rs. 400/per month. She attempted to prevent the landlord from evicting her by filing “O.S. 885 of 1993 fabricated evidence of money orders and a letter as if written by the landlords son. ”She failed to produce the hand-book kept by her and gave contrary oral and documentary evidence. Learned Counsel also relied on a few decisions in support of his contention. 6. Eviction is sought on the ground of wilful default in the payment of rent at the rate of Rs. 400/- per month from January 1993 to November 1993. The landlord claims that the rent is Rs. 400/- per month while the tenants stand is that it is Rs. 200)/- per month. It is specifically urged by the learned Counsel for the tenant that the authorities below have not given a finding as to the quantum and therefore their decision is vitiated. According to the learned Counsel the decision is a nullity. In support he relies on the decision of the Supreme Court in Kiran Singh and others v. Chaman Paswan and others ( AIR 1954 S.C. 340 ). It is laid down in that decision that. According to the learned Counsel the decision is a nullity. In support he relies on the decision of the Supreme Court in Kiran Singh and others v. Chaman Paswan and others ( AIR 1954 S.C. 340 ). It is laid down in that decision that. “it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.” In my view, if it is held that the authorities below had jurisdiction to pass the order they did, the decision of the Supreme Court relied on by the learned Counsel will have absolutely no application. 7. Let us assume for the sake of argument that the rent is only Rs. 200/- per month and proceed to find whether the tenant had paid atleast this admitted amount without committing default. Let us also assume that there is no hand-book available with the tenant where entries are made with regard to payment of rent and the landlord signs the same. The tenant filed a suit on 10.11.1993 in O.S. No. 885 of 1993 for a permanent injunction restraining the landlord from interfering with her peaceful possession and enjoyment of the property. The plaint in the suit is marked as Ex. P1 on the side of the landlord in the present proceedings. It would be necessary to refer to the averments in the plaint and compare them with the stand of the tenant in the counter in the R.C.O.P. In paragraph III(1) it is stated as follows: “The plaintiff has been residing with her family in the suit property as tenant without any obstruction from anybody. Plaintiff has paid the rent to the defendant or to his son K. Dhandapani regularly and there is no arrears of rent. In fact the defendants son has given in writing that there was no arrears by the plaintiff to the defendant from 1987 to 1993. Plaintiff has paid the rent to the defendant or to his son K. Dhandapani regularly and there is no arrears of rent. In fact the defendants son has given in writing that there was no arrears by the plaintiff to the defendant from 1987 to 1993. The documents filed along with the plaint would go to show that the plaintiff alone is residing even now.” The obvious reference is to a receipt alleged to have been passed by the landlords son on 8-7-1993. It has been marked as Ex. B-5 and it reads as follows: This receipt is disputed by the landlord as P.W. 1 and his son as P.W.2. The plaint Ex. P-1 gives a list of documents and the receipt is shown as document No. 20. It has already been noticed that Ex. R-5 bears date 8-7-1993. The plaint is stated to have been prepared in June, 1993, though it was presented on 10-11-1993. If the plaint had been prepared in June, 1993, there could not be any reference to a receipt bearing date 8-7-1993. What follows in paragraph III (2) is more interesting. “When the plaintiff tendered the rent for the month of May, and June, 1993 to the defendant, he refused to receiving the same and the money order was returned Therefore, the defendants son received the amount upto October, 1993.” The prayer, it has already been noticed, is for a permanent injunction restraining the landlord from disturbing the tenants possession and enjoyment of the suit property. It gives the impression that the landlord cannot take possession of his property for ever. Be that as it may, sub para (2) of paragraph III mentions that the landlords son received the rent for October, 1993, but the receipt Ex. R-5 mentions about rent only upto May and June, 1993. 8. Now, let us go to the counter filed in the R.C.O.P. In paragraph 5 it is stated as follows. “The petitioner refused to receive the rent from the respondent from the month of May, 1993. Upto April. 1993 either the petitioner or his son used to come and collect the rent from the respondent directly. The rent will be collected from the respondent either by the petitioner or his son within 10 days of the succeeding month. “The petitioner refused to receive the rent from the respondent from the month of May, 1993. Upto April. 1993 either the petitioner or his son used to come and collect the rent from the respondent directly. The rent will be collected from the respondent either by the petitioner or his son within 10 days of the succeeding month. Because the petitioner failed to turn up to receive the rent for the month of May, 1993, the respondent sent a money order to the petitioner on 14-6-1993 a sum of Rs. 200/- representing the rent for the month of May, 1993. The petitioner refused to receive the money order. Then again on 5-7-1993 the respondent sent a money order for Rs. 400/- to the petitioner representing the rents for May, June, 1993. The second money order was also refused by the petitioner. Then the petitioners son Dhandapani came to the respondents house on 8-7-1993 and collected the rent for the months of May, June, 1993 and has issued a receipt in favour of the respondent. The petitioners son has also stated in the receipt that there was no arrear of rent by the respondent to the petitioner from 1987 to 1993 June. The rent collected by the petitioners son Dhandapani and the receipt issued by him on 8.7.1903 is for and on behalf of the petitioner. It will bind the petitioner and the petitioner cannot evade his liability. The petitioner himself collected the rent directly from the respondent for the months of July and August 1993. The reafter, neither the petitioner nor his son turned up to collect the rent from the respondent for the months of September and October, 1993. Therefore, the respondent sent a money order on 9.11.1993 to the petitioner representing the rent for the months of September and October 1993. Therefore, there was no fault or the side of the respondent in the payment of rent Having refused the money order the petitioner has rushed to the court stating that the respondent is a chronic defaulter.” 9. It would be necessary now at this stage to refer to the oral evidence of the tenant. In her cross-examination she has stated that she gave the rent for January 1993 to the landlords son on the date of Ex. R-5 and that the rent for February, March and April, 1993 into court. It would be necessary now at this stage to refer to the oral evidence of the tenant. In her cross-examination she has stated that she gave the rent for January 1993 to the landlords son on the date of Ex. R-5 and that the rent for February, March and April, 1993 into court. She further states that the plaint was not prepared in June. She further states in cross-examination that she did not know about Ex. R-5 (B-5) that she insisted on passing of receipt and therefore Dhandapani gave the receipt. Since the money order was refused she asked Dhandapani to issue a receipt saying that there were no arrears from 1987 to 1993 June. After Ex. R-5 (B-5) the very next Monday the landlord himself came and collected the rent, but she did not insist on a receipt being given. She trusted him. After Ex. R-5 (B-5) the landlord came twice and collected the rent. 10. In this state of evidence, it is difficult to accept the case of the tenant. Her case stands condemned by her own pleadings, documents and oral evidence. There is absolutely nothing to show that she paid rent from January 1993. With regard to payment of rent she has not had any consistent case. Admittedly, the relationship between the landlord and the tenant became strained from May 1993 and the tenant started sending rent by money order. No doubt, the money orders were refused by the landlord. It is difficult to accept her case that after disputes had arisen she did not insist on receipts being given. According to her the landlord came and collected the rent for subsequent two months. 11. Let us now refer to the various decisions relied on by the learned counsel for the tenant. The first of the decisions is the one reported in Pereira v. Kalyani Bat (1955 — 1 M.L.J. 68 Short-notes) dealing with the word ‘wilful’ the learned single Judge of this Court has observed as follows: “The ordinary dictionary meaning of the ‘wilful’ is intentional, deliberate, due to perversity or self-will. The dictionary meaning is some times forgotten in connection with wilful default of payment of rent which can justify eviction. The dictionary meaning is some times forgotten in connection with wilful default of payment of rent which can justify eviction. For instance, if a tenant makes a default in payment of rent for the simple reason that he has not got the money to pay the rent and on this ground delays a few days in paying the arrear, it is certainly not a case of wilful default and is one which certainly deserves sympathetic consideration by a Court.” It is not the case of the tenant that she was not in a position to pay the rent. On the contrary, her case is that the landlord refused to receive the rent and she did not commit default. 12. The next decision is G. Rangaraju v. Parthasarthi (1964 -1- M.L.J. 12=77 L.W. 658). It has been held that, “a mere default in payment of rent for a few days will not amount to wilful default. To hold that a tenant is wilful in payment of arrears of rent, it must be proved beyond doubt that he had exhibited supine indifference and callousness.” This decision also will not apply to the facts of the present case, having regard to the stand taken by the tenant that she was never in default much less wilful default, it was only the landlord who refused to receive the rent and she was obliged to send the rent by money order. 13. Pointing out the distinction between default and wilful default, this court in Durairaj alias Paramasivam and another v. P.M.S. Rathana Bai (1967-1-M.L.J. 324=80 L.W. 144) observed as follows: “The Legislature is presumably conscious of the distinction when it makes only a wilful default in payment of the rent as a ground for eviction under the Rent Control Act. The inter relation between the act of default and the explanation put forward by the tenant may be stated thus: (a) The fact that the tenant commits default and puts forward a true explanation therefore, does not necessarily mean that the default is not wilful. The explanation may be true and still the default may be wilful. (b) Equally a tenant in default may put forward an explanation which is false and still the default may not be wilful at all. That would depend on the circumstances and probabilities in each case. The explanation may be true and still the default may be wilful. (b) Equally a tenant in default may put forward an explanation which is false and still the default may not be wilful at all. That would depend on the circumstances and probabilities in each case. (c) The fact that the explanation is false does not either imply that the default is not wilful. (d) It would equally follow that a true explanation might show that the default is not wilful.” It has been further held in that decision that, “Where the evidence in the case discloses that the relationship between the parties was unpleasant and had led to criminal proceedings, the oral evidence being unreliable, the benefit of the doubt should be awarded to the tenant and the burden lies heavily on the landlord to prove the circumstances which would justify the inference that the default committed was wilful. If there is any doubt about it and the version of the tenant that he or she did make some attempt to send the rent to the landlord may be conceivably true, the Court should be careful before making an order for eviction.” The decision will not apply to the facts of the present case. The contradictions in the case of the tenant have already been pointed out. She has absolutely no consistent case. 14. For the decision in Chinnaswami Chettiar v. Syed Gurukkal (80 L.W. 27 J.S.) to apply, the tenant must show that he was bona fide and attempting to fulfil his obligations that owing to cause entirely beyond his control could not do that. 15. No doubt, as has been held in S. Venkataramanaswami Ayyar v. S. Abdul Wahab (1969-1-ML.J. 137=82 L.W. 42), the question of wilful default is not a pure question of fact. It must be proved by the tenant that there was no intention to withhold deliberately the rents which the tenant knew were due and payable. The Court would not infer wilful default. In Rathinam Pillai v. Mohammed Kasim (1985-1-M.L.J. 194) attempts were made by the tenant for paying the rents and also protecting his interest and the same was evidenced by the various documents which established that the tenant was anxious to pay the rents and he had also taken the necessary steps to protect his interest and that of the landlord. In Rathinam Pillai v. Mohammed Kasim (1985-1-M.L.J. 194) attempts were made by the tenant for paying the rents and also protecting his interest and the same was evidenced by the various documents which established that the tenant was anxious to pay the rents and he had also taken the necessary steps to protect his interest and that of the landlord. It was also patent in that case that the landlord was trying his best to find out some means by which he could victimise the tenant on one ground or other so that he could evict him from the shop under his occupation. 16. It is not established in the instant case that the tenant has not committed wilful default, that she took the necessary steps even conceding that the landlord refused to receive the rent to protect her interest against an order of eviction. 17. It is necessary to point out, though at the risk of repetition, certain aspects of the matter. In her counter the tenant states that the respondent collected the rent directly for the months of July and August 1993 and thereafter, neither the respondent nor his son turned up to collect the rent for the months of September and October, 1993. But in the suit, her specific stand is that the son of the landlord received the rent up to October, 1993. Again, in the plaint she has stated that the rents for the months of May and June 1993 were refused when to Adered. But she has produced Ex. R-5 (B-5) as though the landlords son gave a clean chit to her mat there were no arrears from 1987 to June 1993. In her plaint, she was stated that the son of the landlord received the rents upto October, 1993. But, Ex. R-6 (B26) M.O. form shows as if she paid the rent for September and October, 1993 She sends an M.O. on 9.11.1993 and files the suit on 10.11.1993. But her plaint averment is that the landlords son received the rents upto October 1993. We have already noticed that Ex. R-5 (B-5) was denied by the landlord and his son. There are several inconsistencies which cannot be brushed aside just like that. 18. It has been held in Iqbaland Co. But her plaint averment is that the landlords son received the rents upto October 1993. We have already noticed that Ex. R-5 (B-5) was denied by the landlord and his son. There are several inconsistencies which cannot be brushed aside just like that. 18. It has been held in Iqbaland Co. v. Abdul Rahim (95 L.W. 245) that the payment of arrears after the case for eviction is filed, does not condone the delay of wilful default of the tenant. 19. In Basavambal v. Chennaiappa Gounder (1980-1-M.L.J. 207) it has been held that notice is not necessary before filing the petition. Even in Sundaram Pillais case reported in AIR 1985 SC 582 it has not been stated that notice before filing the petition is mandatory. 20. In Mohammed Yousuf v. Anwar Basha (1990-1-L.W. 111) it has been held that. “Where a wilful default in the payment of rent is alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the payment of rents, it will not be in consonance with provisions of the Act to presume that the tenant must have paid the rent and the landlord must have declined to issue the receipt. If the tenant is unable to pay the rent due to his poverty or other similar circumstances, even then it will be construed as-wilful.” 21. In Deluxe Road Lines v. P.K. Palani Chetty (1992 -1-L.W. 262) it has been held that, “an unexplained default is undoubtedly wilful and the entire burden is on the tenant to prove the circumstances under which he failed to pay the rent as required by the statute. The obligation to pay rent is not merely contractual but is also statutory.” 22. The tenant in the instant case has miserably failed to prove that she had paid the rent during the relevant period, namely. January 1993 to November 1993 and having regard to what is already stated it is not possible to take a view different from what has been taken by the authorities below. The tenant who had been supinely indifferent and had set up a false case had no consistent stand and the order of eviction passed by the authorities below cannot be interfered with under Section 25 of the Act. The Civil Revision Petition is dismissed. There will be no order as to costs. Consequently. C.M.P No. 1256/99 is closed. 23. The tenant who had been supinely indifferent and had set up a false case had no consistent stand and the order of eviction passed by the authorities below cannot be interfered with under Section 25 of the Act. The Civil Revision Petition is dismissed. There will be no order as to costs. Consequently. C.M.P No. 1256/99 is closed. 23. The tenant is granted three months time to vacate the premises, subject to her filing an affidavit of undertaking with the usual default clause.