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Madras High Court · body

2000 DIGILAW 127 (MAD)

S. Velu Pillai (died) v. S. Lakshmi (died)

2000-01-31

S.S.SUBRAMANI

body2000
Judgment :- 1. The tenant in R.C.O.P. No. 42 of 1989 on the file of the Additional District Munsif-cum-Rent Controller,. Nagercoil is the revision petitioner. After filing this revision, both the landlady and tenant died and their legal representatives are impleaded as additional petitioners and additional respondent 2. The landlady filed the eviction petition on the ground that the tenant had committed wilful default in paying the rent. The material averments in the eviction petition could be summarised as thus: The tenant took the scheduled premises on oral lease from the landladys husband late S. Chockahngam from 17.10.1960. At that time, the monthly rent was Rs. 15/-. The respondent paid rent upto and inclusive of 11.2.1970 to the landladys husband and after his death, the rent was being paid to the landlady. Whenever rent is paid, the receipt was also being issued to the tenant. The rent from 12.2.1970 was defaulted and that compelled the landlady to issue a lawyers notice on 9.2.1972. The tenant accepted the same and agreed that he will pay the rent arrears and also surrender schedule property shortly and requested that no eviction proceedings be initiated against him. At that time, the rent upto 12.1.1971 was also paid. Since the property tax for the building was enhanced by the local authority, the landlady wanted enhancement in the rent and the rent was enhanced to Rs. 20/- by mutual consent. From 13.1.1971, the tenant was paying Rs. 20/- per month and he paid rent up to 14.12.1973. Thereafter, he committed default in paying rent. The landlady by herself and through her brother demanded the tenant to surrender vacant possession of the building with rent arrears. The tenant was evading payment and also to surrender possession. A notice was issued on 15.10.1976 demanding rent arrears and also to vacate the premises. Long after receipt of the notice, a reply was sent on 28.12.1976 denying the allegations therein. In the meanwhile, the rent arrears also increased to a huge amount. In the reply notice, the tenant contended that he has paid a sum of Rs. 1,000/- to landladys husband and there was an oral agreement to adjust the rent in the loan paid by him. Therefore, the landlady initiated H.R.C. No. 18 of 1977 before the Rent Controller, Nagercoil seeking eviction on the ground of default in payment of rent. In the reply notice, the tenant contended that he has paid a sum of Rs. 1,000/- to landladys husband and there was an oral agreement to adjust the rent in the loan paid by him. Therefore, the landlady initiated H.R.C. No. 18 of 1977 before the Rent Controller, Nagercoil seeking eviction on the ground of default in payment of rent. In that proceedings, the tenant alleged that he paid Rs. 1,000/- to late S. Chockalingam and also contended that the landlady agreed to adjust the said amount towards the rent due from him. The Rent Controller accepted the allegations of the tenant and dismissed the eviction petition. Though the matter was taken in appeal and revision, the same was also dismissed. 3. It is the further case of the landlady that after the disposal of the revision in C.R.P. No. 1993 of 1979, the respondent did not pay regularly and he used to deposit rent once in three or four months. The conduct of the tenant shows that he is not interested in paying the rent in time and he can deposit the same only according to his convenience. In paragraph No. 8 of the eviction petition, the landlady has also given the schedule of payments which shows that various amounts were deposited in Court once in four months or five months. According to the landlady, the non-payment of rent in time is intentional and, therefore, the tenant has committed wilful default in paying the rent. 4. In the counter statement filed by the petitioner-tenant, he admitted the rental arrangement and also the earlier eviction proceedings. In paragraph No. 6 of the counter, he stated that the details mentioned in paragraph No. 8 of the petition is misleading and is not correct and the tenant is regularly paying the rent. According to him, he is not a defaulter and much less a wilful defaulter. He prayed for the dismissal of the eviction petition. 5. On the above pleadings, the parties went on trial. On the side of the landlady, P.W.I was examined and the petitioner got himself examined as D.W. 1. the documentary evidence consisted of Exs.R. 1 and R. 2, which are judgments in earlier proceedings. 6. He prayed for the dismissal of the eviction petition. 5. On the above pleadings, the parties went on trial. On the side of the landlady, P.W.I was examined and the petitioner got himself examined as D.W. 1. the documentary evidence consisted of Exs.R. 1 and R. 2, which are judgments in earlier proceedings. 6. After evaluating the entire evidence, the Rent Controller held that after disposal of C.R.P. No. 1993 of 1979, the tenant was not regular in paying the rent and he used to deposit the rent only once in three or four months and he was indifferent in paying the same. The contention that he used to pay rent in advance was found to be not true. The trial Court further held that when litigations are pending before Court, or when the parties are not in good terms, the tenant has got a duty to see that the rent is paid to the landlady in time. The Rent Controller held that the tenant was all along indifferent in paying rent in time and consequently he is a wilful defaulter. The eviction is ordered. 7. Against the Judgment, the tenant preferred R.C.A. No. 23 of 1992 on the file of the Rent Control Appellate Authority-Subordinate Judge, Nagercoil. The Appellate Authority also confirmed the decision of the Rent Control after re-appreciating the entire evidence. The explanation offered by the tenant that he used to pay the rent in advance was found to be not true and the contention that the landlord also used to accept the rent belatedly without any objection was also found to be not correct. The appeal is dismissed. 8. The concurrent judgments are assailed in revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 9. Heard both sides. 10. The only question that requires consideration is, whether the judgments of the authorities below is in any way illegal, improper or irregular, so as to warrant interference under Section 25 of the Rent Control Act. 11. The only argument that is placed by the learned counsel appearing for the petitioner is that the tenant used to pay rent once in four months and in such a way that there will be always an advance of two months rent with the landlady. 11. The only argument that is placed by the learned counsel appearing for the petitioner is that the tenant used to pay rent once in four months and in such a way that there will be always an advance of two months rent with the landlady. Even if there is a default of two months, the tenant used to deposit the rent for four months, and thus discharged the rent arrears and pay advance for future two months and this was being received by the landlady without any objection. When this practice is followed for a long time, and the landlady is also receiving the rent without any objection, the late payment cannot be construed as a default, much less a wilful default. Learned counsel brought to my notice the schedule of payments as stated in paragraph No. 8 of the eviction petition. It may be noted that all the payments mentioned in paragraph No. 8 of the eviction petition are Court deposits after the earlier eviction proceedings came to an end. It is a definite case of the landlady that these deposits are not valid deposits. Once the legal procedure comes to an end and no notice was also given to her or to her counsel when such deposits are made. In the counter statement filed by the tenant, he denies the schedule of payment as stated in paragraph No. 8. According to him, he has been paying the rents regularly. In the counter statement, he has no case about any practice as was argued by the learned counsel before this Court. 12. As stated earlier, all these deposits are made in a Civil Court after the prior litigation came to an end and that too, without notice to the landlady. So, there is a scope for raising any objection to such deposits whenever the landlady gets information about the deposits, she received the same from the Court. Such conduct on the part of the landlady in receiving the amount which is due to her cannot be a ground to hold that this has been a practice recognised and accepted by both parties. 13. According to the tenant, he has been regularly depositing the rent and he is not accepting the statement in paragraph No. 8. If that be so, even according to him there had been no such practice. 14. 13. According to the tenant, he has been regularly depositing the rent and he is not accepting the statement in paragraph No. 8. If that be so, even according to him there had been no such practice. 14. Merely because the landlady accepts the rent after she comes to know that some amount due to her are deposited, that will not stop her from contending that the deposits made are not valid deposits. 15. The eviction petition was filed on 6.11.1989 and by that date, the rents for the months of September and October were admittedly due. Once it is found that there is no such practice as argued by the learned counsel, he will have to explain why the tenant committed default in paying rent for the months of September and October, 1989. There is no explanation offered by the tenant why he did not pay the rent in time. 16. It is also clear from the evidence in this case that the landlady originally initiated proceedings for eviction on the ground of rent arrears. In that case also, the landlady contended that the rent is not paid in time and regularly. That application was dismissed only on the ground that the tenant has advanced some amount to landladys husband and he is entitled to adjust the same in the monthly rent payable by hum. It is clear from the above judgment that the adjustment is also to be made every month and not once in three months and four months. After the decision in C.R.P. No. 1993 of 1979, it is clear that the tenant was not paying the rent regularly. The payment was made according to his convenience. 17. Learned counsel appearing for the petitioner relied on the following decisions. (1) AIR 1988 S.C. 1111 (Mohan Laxman Hede v. Noormohamed Adam Shaikh), (2) AIR 1989 S.C. 920 (Rashik Lal v. Shah Gokuldas) (3) AIR 1966 Madras 67 (Khivraj Chordia v. G. Maniklal Bhattad) (4) 1979 (I) M.L.J. 317 (Basappa v. Jumnadoss), and (5) 1998 (III) C.T.C. 56 (M.K. Sankaran v. S. Birlasekaran and another) 18. On going through these decisions, I do not think that they have any application to the facts of this case. In AIR 1988 S.C. 1111 (Mohan Laxman Hede v. Noormohamed Adam Shaikh), the question that came up for consideration was, whether the rent was paid regularly. On going through these decisions, I do not think that they have any application to the facts of this case. In AIR 1988 S.C. 1111 (Mohan Laxman Hede v. Noormohamed Adam Shaikh), the question that came up for consideration was, whether the rent was paid regularly. Their Lordships held that “ “regularly” does not mean with exact or mathematical punctuality”. On the facts of the case, their Lordships held that even though there is a delay in payment, the same cannot be construed as a wilful default. I do not think that the above decision have any application to the facts of this case. As stated earlier, the deposits are made in the litigation which has come to an end and without notice to the landlady. Therefore, she cannot object to the deposits. In this case, the tenant has also no case that there had been any practice of receiving delayed deposits without any objection. According to him, he has been depositing the rents regularly. He even denied the statement in paragraph No. 8 of the petition. Hence, no reliance could be placed on the above decision. Rashik Lals case also, is distinguishable on facts. There, the landlord is accepting the rent without any objection for a long time and their lordships held that when the landlord accepts belated payment without any protest for a long time, that conduct can be taken as a new contract between the parties. The said decision also has no application to the facts of this case. I do not want to go to the other decisions since the facts therein are all entirely different. 19. As rightly found by the Rent Controller-cum-Appellate Authority, when the relationship of the landlord and tenant became strained, the tenant is duty-bound to deposit the rent as and when becomes due. Any delayed payment can be construed only as deposit made at the risk of the tenant. The deposits made in a litigation which has ended is not a deposit under Section 8(5) of the Rent Control Act nor it can be construed as a valid tender of rent. When it is not a valid tender or deposit, the tenant also cannot contend that he has discharged his obligations under the rental agreement. 20. The concurrent findings of the Court below are not liable to be interfered with and consequently the revision petition is dismissed with costs. Consequently. When it is not a valid tender or deposit, the tenant also cannot contend that he has discharged his obligations under the rental agreement. 20. The concurrent findings of the Court below are not liable to be interfered with and consequently the revision petition is dismissed with costs. Consequently. C.M.P. No. 4836 1996 is also dismissed.