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2004 DIGILAW 479 (MAD)

A. S. K. Venkatachary v. M. Meeran Saheb

2004-03-18

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The revision petitioner is unsuccessful landlord before the Rent Control Appellate Authority. 2. The landlord filed the Rent Control Original Petition for eviction on the ground of wilful default in payment of rent from June, 1989 to September, 1989. 3. The petition was contested admitting the quantum of rent at Rs.325/- per month and denying that he has committed default in payment of rent for the months of June, 1989 to September, 1989 as claimed by the landlord and further stating that the landlord was in the habit of receiving rental amount in lump-sum once in three or four months. It is further stated that when the tenant tendered rent for the months of June, 1989 to October, 1989 in November, 1989, the landlord refused to receive the rent demanding higher rent, so the tenant sent the rent for the months of June, 1989 to October, 1989 as per Pay Order of Canara Bank. 4. Before the Rent Controller, the landlord's son was examined as P.W.1 and Exs.A-1 to A-6 were marked on the side of the landlord. The tenant was examined as R.W.1. Considering such evidence let in on either side and accepting the case of the landlord, the learned Rent Controller recorded finding that the tenant has committed default in payment of rent wilfully for the months from June, 1989 to September, 1989 and ordered eviction. The order was challenged before the Rent Control Appellate Authority and the learned Rent Control Appellate Authority accepting the case of the tenant that the rent for the months of June, 1989 to October, 1989, viz., Rs.1,625/- was sent by Pay Order of Canara Bank on 30.11.1989 under Ex.A-3 even before the tenant entered appearance on 18.12.1989 in the Rent Control Original Petition and therefore, the tenant has not committed default in payment of rent for the months of June, 1989 to September, 1989. Further, considering the evidence of P.W.1 that entire arrears had been paid before the learned Rent Control Appellate Authority by recording finding that the default in payment of rent as claimed for the months of June, 1989 to September, 1989 cannot be construed as wilful and therefore, allowed the Rent Control Appeal. The judgment is challenged by the landlord in this Civil Revision Petition. 5. The judgment is challenged by the landlord in this Civil Revision Petition. 5. The learned counsel for the revision petitioner/landlord vehemently contended that it is for the tenant to pay monthly rent regularly and since admittedly, the rent for the months of June, 1989 to September, 1989 was not paid then and there and sent by way of Pay Order of the Canara Bank only on 30.11.1989 under Ex.A-3 representing the rent for the months of June, 1989 to October, 1989, there have been supine indifference and callousness on the part of the tenant, as such, such default in payment of rent for the months of June, 1989 to September, 1989 amounts to wilful. The learned counsel for the landlord also argued that only after the order in I.A.No.288 of 1993 in R.C.O.P.No.526 of 1989 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the tenant paid the entire rental arrears and the said subsequent conduct of the tenant also to be taken into consideration. The learned counsel for the landlord has filed a calculation memo. As per the calculation memo, the rent from March, 1993 to November, 2003 worked out to Rs.41,925.00 for 129 months at the rate of Rs.325/- per month. The tenant has only paid Rs.35,700/-. Still there have been arrears of rent to the extent of Rs.6,225/-. In support of the contention that the subsequent conduct of the tenant also to be taken note of in not paying the rent regularly, the learned counsel for the landlord relied on the following decisions:- (1) P.Vasuvaithiar – vs. - R.M.Rangoo Chettiar reported in 2000-2 Law Weekly 708, in which this Court has held:- "Under Rent Control Act, rent is payable as and when it becomes due. It is a statutory obligation on the part of tenant to pay rent, according to the tenancy agreement. If any date is fixed for payment, the same will have to be paid within 15 days from the due date and if no fixed date is given for payment, by the end of month following the month for which rent is due. In case tenant is not paying the amount as per the provisions, he must be deemed to be defaulter in paying rent. In case tenant is not paying the amount as per the provisions, he must be deemed to be defaulter in paying rent. The contention taken by tenant that he has paid entire rent as and when it becomes due was rightly rejected by Rent Controller as well as Appellate Authority. Even if the tenant has paid the entire rent during the course of proceedings, that by itself will not absolve him from contending that he is not wilful defaulter. As rightly found by Appellate Authority, when the litigation is pending between parties, tenant should have been little more careful in paying rent as and when it became due to discharge the statutory obligation. Even from the counter, it is clear that he used to pay the amount in lump only and not on the due dates. If tenant has paid only four months rent during the entire period, naturally he has to explain why rent was not paid for more than 20 months. But at the same time, he took a false contention that he has paid the entire arrears and not liable to pay any rent. After having taken such a contention and paying the amount in lump-sum during the course of this proceedings shows that the intention of tenant was not bona fide and he has taken the contention knowing full well that the same is false. Under the above circumstances, he could be termed only as 'wilful defaulter'. By taking false contention, his intention is clear that he does not want to pay any rent unless he is compelled to do so." (2) T.Gopalsamy and another – vs. - R.Renganathan and others reported in 2000-2 Law Weekly 699, in which this Court at page 70 has held:- "Merely because landlord received rent which is due to him there cannot be any estoppel especially when the amount was received under protest. The Supreme Court has held that the deposit made which is not in compliance with the statutory provisions is not valid tender. Tenant cannot say that this is a practice which is acquiesced by the landlord. There cannot be a practice in disregard of the law. From the extract of deposition it is clear that the tenant did not want to tender rent to landlord and it is not their case that they offered rent to landlord and they refused to accept the same." 6. There cannot be a practice in disregard of the law. From the extract of deposition it is clear that the tenant did not want to tender rent to landlord and it is not their case that they offered rent to landlord and they refused to accept the same." 6. The Rent Control Original Petition was filed on 2.11.1989 claiming that the tenant has committed default in payment of rent wilfully for the months of June, 1989 to September, 1989. According to the tenant the landlord was in the habit of receiving rental amount in lump-sum once in three or four months and when he tendered rent for the months of June, 1989 to October, 1989, the landlord refused to receive the same demanding higher rent and therefore, he sent the rental amount of Rs.1,625/- towards the rent for the months of June, 1989 to October, 1989 as per Pay Order of Canara Bank under Ex.A-3 dated 30.11.1989 even before filing of the Rent Control Original Petition and the first hearing date i.e. 18.12.1989 on which date the tenant entered appearance through advocate, as such, the default in payment of rent cannot be construed as wilful, according to the learned counsel for tenant. 7. The landlord caused lawyer notice under Ex.A-1 on 10.4.1986 claiming that the tenant has not paid the rent for 10 months from June, 1985 to March, 1986 and that the petition premises is also required for demolition and reconstruction. It appears, the rent as claimed under notice Ex.A-1 was paid and admittedly, the rent till May, 1989 was paid. The tenant sent letter under Ex.A-3 dated 30.11.1989 that the landlord refused to receive the rent from June, 1989 and so he sent the rental amount of Rs.1,225/- towards the rent for the months of June, 1989 to October, 1989 for five months as per Pay Order of Canara Bank dated 29.11.1989. 8. The landlord caused notice under Ex.A-1 that the tenant has not paid the rent from June, 1985 to March, 1986 for 10 months to the tune of Rs.3,250/- at the rate of Rs.325/- per month. In the said notice it is stated that lastly the tenant paid the rent for the moths of March, 1985 to May, 1985 only on 1.4.1986. In the said notice it is stated that lastly the tenant paid the rent for the moths of March, 1985 to May, 1985 only on 1.4.1986. Even after the said notice, the tenant has been in the habit of paying the rent once in two or three months which has been accepted by the landlord. Similarly, the tenant sent the Pay Order for Rs.1,625/- towards the rental amount for 5 months June, 1989 to October, 1989 on 30.11.1989 under Ex.A-3. Merely because the landlord was accepting the rent paid collectively, once in three or four months, it will not be absolving the liability of the tenant from paying the rent every month. The duty is cast upon the tenant to pay the rent regularly. Though notice was caused under Ex.A-1 that the rental amounts fell due for the months of June, 1985 to March 1986, the tenant has been irregular in payment of rent. As such, there have been supine indifference and callousness on the part of the tenant in paying and sending the rent for the months of June, 1989 to October, 1989 by way of Pay Order of Canara Bank under Ex.A-3 dated 30.11.1989. The tenant was not careful enough to pay the rent every month despite the fact the notice was issued under Ex.A-1 as early as on 10.4.1986 that the rental amount fell due for the months of June, 1985 to March, 1986 and even thereafter, it appears, still the sum of Rs.6,225/- is due towards rental arrears for about 19 months, in that from March, 1993 to November, 2003 for 129 months, the tenant has paid only Rs.35,700/- though the amount payable is Rs.41,925/- as per calculation memo filed by the landlord. The subsequent conduct of the tenant also shows that he is not regular in payment of rent and that the intention of the tenant in paying the rent as and when he desires, is not bona fide and therefore, he must be deemed to be wilful defaulter. 9. The subsequent conduct of the tenant also shows that he is not regular in payment of rent and that the intention of the tenant in paying the rent as and when he desires, is not bona fide and therefore, he must be deemed to be wilful defaulter. 9. Further in sending the rent for the months of June, 1989 to October, 1989 under Ex.A-3 on 30.11.1989 by Pay Order of Canara Bank and stating that the landlord refused to receive the rent when tendered rent for the months of June, 1989 to October, 1989 and without following the procedure as contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act amounts to wilful. The tenant has committed such default in payment of rent wilfully in that, there have been supine indifference and callousness on the part of the tenant, though it can be said that it was paid even before the first hearing date of the Rent Control Original Petition on 18.12.1989. So the tenant is to be evicted on that ground. Therefore, the finding recorded by the learned Rent Control Appellate Authority that the tenant has not committed wilful default in payment of rent is improper and is to be interfered with by this Court by setting aside the said finding. 10. In the result, this Civil Revision Petition is allowed with cost. The judgment and decree dated 13.1.1999 made in R.C.A.No.53 of 1996 by the learned Rent Control Appellate Authority (Principal Subordinate Judge), Madurai, are set aside.