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2004 DIGILAW 388 (MAD)

Siddiq v. N. Boriah

2004-03-09

A.KULASEKARAN

body2004
Judgment :- The tenant is the revision petitioner herein. RCOP No. 7 of 2000 was filed by the Landlord/respondent herein under Section 10 (2) (i), 10 (2) (ii) (b) and 10 (2) (vi) of the Rent Control Act for eviction of the tenant/petitioner herein. The said RCOP No. 7 of 2000 was allowed by the Rent Controller on 13-11-2001. Aggrieved by the same, the petitioner herein has filed RCA No. 27 of 2000 which was also dismissed, hence this revision. 2. The case of the petitioner/tenant is that, his grand father was the original tenant in the property and on his demise, his sons namely Abdul Azeez (father of the petitioner herein) and Abdul Majeeth were carrying on the business under the name and style of 'Bombay Tailoring Shop'. After the demise of Abdul Azeez, the petitioner herein has been carrying on the business. The rent for the Petition mentioned property is only Rs.100/- and not Rs.300/- as alleged by the respondent herein. The petitioner is not in arrears of rent at all. In fact, Cheque for a sum of Rs.2800/- towards rental arrears was sent by the petitioner herein which was refused by the respondent/landlord. 3. The case of the respondent is that the respondent herein is the owner of the non-residential portion of the property bearing Old Door No.49, New Door No. 69, "Sultana Hall", Commercial Road, Ootacamund. The said premises was let out to one Abdul Azeez, father of the petitioner herein for running a Tailor shop for a monthly rent of Rs.300/-. During 1995, the said Abdul Azeez died and the premises was not used and kept under lock and key. During January 2000, the petitioner herein came to the premises and started running milk business. The respondent herein demanded rental arrears to the tune of Rs.25,400/- for the period from 01-01-1993 to 31-12-1999 at the rate of Rs.300/- per month, but, the petitioner did not pay the rental arrears, hence the RCOP was filed on the grounds of (i) wilful default (ii) different user and (iii) ceased to occupy the premises for a continuous period of 4 months without reasonable cause. 4. Before the Rent Controller, The landlord/ Respondent has marked Exs. P1 to P15 and examined himself as PW1. The petitioner herein has marked Exs. R1 to R78 and examined himself as RW1. 4. Before the Rent Controller, The landlord/ Respondent has marked Exs. P1 to P15 and examined himself as PW1. The petitioner herein has marked Exs. R1 to R78 and examined himself as RW1. The learned Rent Controller ordered eviction of the petitioner herein under the ground of wilful default and rejected the other grounds. However, the respondent/landlord has not filed any cross appeal in respect of the finding against the plea of different user and ceased to occupy the premises for a continuous period of four months without reasonable cause. Aggrieved by the said order of eviction, the petitioner herein has filed Rent Control Appeal before the appellate authority which was also dismissed. 5. The point for consideration in this revision is whether the order of eviction passed by the courts below is valid or not. 6. The learned Rent Controller as well as the appellate authority rejected the plea of different user and the petitioner ceased to occupy the premises for a continuous period of four months without reasonable cause on the ground that no valid evidence was produced to substantiate the same. 7. Originally, one Mr. Madar Khan was the tenant in respect of the premises, who was running business under the name and style of "Bombay Tailoring'. After his demise, his second son and Abdul Azeez became a tenant. The said Abdul Azees had two sons namely Siddiq Mohammed and Jagim Mohammed. During 1995, Abdul Azees died. The respondent/ landlord issued separate notice to the said Siddiq Mohammed and Jagim Mohammed on 17-02-2000 which was marked as Ex.P1. Even prior to the said notice, Ex.P12 dated 20-04-1996 was sent by the landlord through his counsel, calling upon both of them to pay the arrears of rent at the rate of Rs.100/- per month for the period from May 1991 to September 1993 and further demanded rent at the rate of Rs.300/- from October 1993 to March 1996. Ex.P13 is the acknowledgment of the petitioner herein for the said notice dated 20-04-1996. On 05-02-1997, under Ex.P14, the respondent herein sent notice to the petitioner herein and his brother stating that they are not tenants and expressed his intention to take action for eviction by common Law remedy. The petitioner and his brother sent a reply under Ex.P15 wherein they have enclosed a cheque for a sum of Rs.2,800/-. Though the respondent received the reply, he returned the cheque. The petitioner and his brother sent a reply under Ex.P15 wherein they have enclosed a cheque for a sum of Rs.2,800/-. Though the respondent received the reply, he returned the cheque. 8. An argument was advanced by the counsel for the petitioner that under Ex.P14, the respondent has declared them as not tenant, hence the proceedings initiated under Rent Control Act was not maintainable. The Courts below rejected the said contention on the ground that Ex.P15, reply notice sent by the petitioner herein claiming themselves as tenants and sent cheque for Rs.2,800/- towards arrears of rent as such the proceedings initiated under Tamil Nadu Buildings (Lease and Rent Control) Act is sustainable. 9. The courts below, based on Exhibits P12, sent by the respondent calling upon the petitioner and his brother to pay rent at the rate of Rs.100/- per month, Ex.R3 to R69, rental receipts issued by the respondent and Ex.P3 to P9 found that the rent for the demised premises was Rs.100/- per month. Ex.P3 to P9 are counterfoils of the rental receipts, which were verified by the courts below and found that petitioner's father Abdul Azees has paid rent upto April 1991 and thereafter he passed away during May 1991. 10. On proper consideration of Ex.P3 to P9 and also Ex.P12, the courts below held that the petitioner herein has not paid rent commencing from 01-05-1991 to 30-04-1997. The courts below, while rejecting the revised rent at Rs.300/- per month demanded by the respondent under Ex.P12, taken into account the period of default as commencing from 01-05-1991 to 30-04-1997 since the same was not rebutted by the petitioner by placing valid evidence. 11. Along with Ex.P15, the petitioner herein enclosed a cheque for Rs.2,800/- representing rent for 28 months commencing from 01-05-1991, which was returned by the respondent on the ground that the petitioner has not made payment towards rent for the entire period namely 01-05-1991 to 30-04-1997. After return of the cheque for Rs.2,800/-, the petitioner herein has not paid any amount till 30-04-1997. Hence, the courts below found that the period of default was from 01-05-1991 to 30-04-1997. 12. An argument was advanced that cheque for a sum of Rs.2,800/- was tendered by the petitioner but the same was not accepted by the respondent even without any valid reason, hence the period of default cannot be treated as a wilful default. Hence, the courts below found that the period of default was from 01-05-1991 to 30-04-1997. 12. An argument was advanced that cheque for a sum of Rs.2,800/- was tendered by the petitioner but the same was not accepted by the respondent even without any valid reason, hence the period of default cannot be treated as a wilful default. Even assuming that the amount of Rs.2,800/- was tendered by way of cheque, it cannot be stated as a valid tender. Tender means, it must be full amount due and payable to be tendered. The landlord is entitled to decline the same in the absence of any agreement to receive payment of the same due to him in instalments and he can claim that the whole sum due to be paid at one and same time. Section 38 of the Indian Contract Act runs as follows:- "38. Where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract:- Every such offer must fulfil the following conditions; (i) it must be unconditional; (ii) it must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do; (iii) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An offer to one of several joint promisees has the same legal consequences as an offer to all of them. 13. Section 38 of the Contract Act requires in case of payment, a genuine and unconditional offer to pay unconditionally at a proper place, made by person liable to pay. If the amount due is validly tendered to the landlord by the tenant, the landlord is bound to accept the money. In the case on hand, the documents Exs. P3 to P9, P12 and P15 establish the period of default, but the petitioner herein has issued cheque for Rs.2,800/- as against the due of Rs.7,200/-. If the amount due is validly tendered to the landlord by the tenant, the landlord is bound to accept the money. In the case on hand, the documents Exs. P3 to P9, P12 and P15 establish the period of default, but the petitioner herein has issued cheque for Rs.2,800/- as against the due of Rs.7,200/-. The respondent has rightly refused to receive the same, hence, I hold the tender is not a valid tender. The amount deposited in the Court also not representing the entire period, hence the same cannot also cure the defect of default. 14. Of course, a mere default in the payment of rent is not sufficient ipso jury to constitute a ground for eviction. To arrive at a conclusion that a tenant is in default, the mere fact that the tenant is in arrears of rent would not be enough and the Court has to consider whether there was intentional violation of the clear obligation to pay rent. Followed (S. Venkataramanaswami Ayyar Vs. S. Abdul Wahab) 1969 I MLJ 137. 15. There is a clear difference in Law between default and wilful default. Wilful default or intentional default is a default accompanied by a particular state of mind, which cannot be directly proved but has to be inferred from the entire complex set of circumstance. Followed (Ramachandran Vs. Kumarsamy) 1963 II MLJ Short Notes 443. 16. Section 10 (2) (i) of the Rent Control Act is a very stringent provision and therefore it becomes all the more necessary for Courts to administer it cautiously and accept the request of the landlord for eviction only under stated circumstance which satisfy every limb of the Section. Followed (Mesdeames T. Moolagarkar Vs. Rajamohan Rao) 1979 II MLJ 505. 17. In the decision reported in (Nagarathinam Pillai Vs. Mahadevier) 1969 II MLJ 492 it is held thus:- "Hence, the three grounds relied on by the appellate authority, viz., (i) earlier rents sent by money orders, (ii) arrears paid into Court after the petition and (iii) rental having been retained as advance, are not at all reasons that a Court can recognise for holding that the default was not 'wilful'. This Court has repeatedly pointed out that 'wilful' default was not default within the meaning fo the statute, implies a conscious or volitional failure to discharge obligations laid by law on a tenant, which also includes a supine indifference to those obligations. The default has to be characterised as 'wilful', where there is no ground, that the law can take into account, to show that the default was not conscious or volitional." 18. In the decision reported in (C. Thangaswamy Nadar Vs. Pappa and six others) 1988 Volume 102 Law Weekly 223, it was held in para-9 thus:- "9. ...The burden to show that the default is not intentional or deliberate is on the tenant. The effect of that decision will only be that a mere proof of default may not necessarily lead to an inference of wilful default. But whether a default is wilful or not is a conclusion to be arrived at on the facts and circumstances of each case. If there was a continuous default which is unexplained, a Court will be well justified in coming to the conclusion that the default is wilful and deliberate." 19. The long period of default expressed the state of mind of the tenant to arrive at a conclusion that it is an intentional violation of clear obligation, which amounts to wilful default. Hence the courts below are justified in coming to the conclusion that the default is wilful and deliberate. 20. The learned counsel for the petitioner advanced an argument that though the petitioner and his brother are tenants, the respondent has arrayed the petitioner alone as party in the eviction proceedings, non-joinder of his brother is fatal to the case. Indeed, the courts below found from the evidence of the petitioner that "the petitioner alone is a tenant as defined under the Act" and concluded that the eviction proceeding is maintainable. 21. Section 2 (8) of the Act defines tenant. "It means any person by whom or on whose account rent is payable for a building and includes surviving spouse or any son or daughter or legal representative of a deceased tenant who (i) ... (ii) in the case of a non-residential building had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter." 22. (ii) in the case of a non-residential building had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter." 22. Section 2 (8) defines tenant in a very broad terms to include any person by whom or on whose account rent is payable for a building and even includes the surviving spouse or any son or daughter and any person continuing in possession. Followed (Ramiah Chettiar Vs. Sankaralingam Pillai) 1970 (1) MLJ 484. 23. The relationship of the landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy and the intention is to be gathered from the facts and circumstance of the case. Followed (Biswabhahani Private Limited Vs. S.K. Dutta) 1980 (1)SCC 185 at 195. 24. Though notice, Ex. P1 and Ex.P12 were given to petitioner and his brother, since the petitioner alone carrying on the business in the demised premises, the respondent has confined with the petitioner. The evidence let in by the petitioner shows that he alone is the tenant in the demised premises and it would justify an inference of tenancy in his favour. Hence, non-joinder of petitioner's brother no way fatal to the case. 25. For the above mentioned reasons, I confirm the order of the courts below. The revision fails and is dismissed. No costs. Consequently connected CMP is closed. The petitioner is directed to deliver vacant possession of the demised premises to the respondent within two months from today in compliance with the decree of eviction passed by the appellate authority confirming the decree of the Rent Controller.