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2004 DIGILAW 740 (MAD)

K. Dhanabalan v. Parvathi Ammal

2004-05-12

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment : 1. The landlord is the revision petitioner in this Civil Revision Petition. This Civil Revision Petition is filed against the Rent Control Appeal preferred by tenant, which was allowed by the Rent Control Appellate Authority setting aside the eviction of the tenant from the petition premises ordered by the Rent Controller on the ground of wilful default in payment of rent. 2. The landlord as petitioner filed the Rent Control Original Petition seeking eviction of the respondent/tenant from the petition non-residential premises bearing Door No. 30, Big Bazaar Street, Dindigul. In the petition, it is stated that the petition premises originally belonged to one Krishnan Chettiar, father of the petitioner, under whom the deceased first respondent became a tenant 40 years ago and after allotment of the petition premises to the petitioner in the family partition, the deceased first respondent also attorned tenancy. It is stated that the tenant paid rent only till December 1990 and thereafter, from January 1991 till September 1993, he committed default in payment of rent wilfully. The petitioner is running a financial company in a rental building. It is further stated that the two major sons of the petitioner require the building to run a business. The petitioner does not own any non-residential building in the Town except the petition building. It was informed that the respondent would vacate the building within two months and pay the arrears of rent but he has not vacated the petition premises. The deceased first respondent paid rent of Rs.400 for the month of January 1993 on 5.2.993 and it was refused by the petitioner since the arrears of rent was not paid. The deceased first respondent caused notice on 5.2.1993 for deposit of rent and reply was sent by the petitioner on 9.2.1993. Then the petitioner issued a notice through his Advocate on 4.3.1993 claiming arrears of rent and for eviction of the petition premises for which the respondent gave a false reply. The respondent/tenant also filed H.R.C.O.P. No. 23 of 1993 for deposit of rent and the petition was opposed by filing counter. On these grounds, the petitioner/landlord sought for eviction of the respondent/tenant from the petition premises. 3. The respondent/tenant also filed H.R.C.O.P. No. 23 of 1993 for deposit of rent and the petition was opposed by filing counter. On these grounds, the petitioner/landlord sought for eviction of the respondent/tenant from the petition premises. 3. The respondent as tenant filed counter stating that the petitioner/landlord was not in the habit of issuing any receipt for the rent paid, that the respondent/tenant has been paying the rent regularly and the same is entered into the Account book maintained by him in the regular course of business and that the deceased first respondent paid rent up to December 1992 without fail and when he tendered the rent for the month of January 1993 on 5.0.1993, the petitioner refused to receive the same. So the deceased first respondent sent the rent for the month of January 1993 on 9.2.1993 to the petitioner by Money Order and that was also refused. A notice was sent on 19.2.1993 asking the petitioner/landlord to specify the Bank into which the rent amount can be deposited but no reply was sent by the petitioner to the said notice, which was received by him on 20.2.1993. However, the petitioner/landlord sent notice on 22.3.1993. The deceased first respondent also sent a reply on 6.4.1993. The rent sent for the months of January 1993 and February 1993 on 9.3.1993 to the petitioner by Money Order was also returned as refused. Therefore, the deceased first respondent filed H.R.C.O.P. No. 23 of 1993 for deposit of rent for the months of January 1993 to March 1993 and the rent due for the subsequent months and the said petition was allowed, after contest, on 27.10.1993, permitting the deceased first respondent to deposit the rent amount in Court. The landlord, by filing application, has taken the amount from Court deposit. In the said circumstances, the deceased first respondent has not committed default much less wilful default in payment of rent as claimed by the landlord. It is denied that the deceased first respondent committed wilful default in payment of rent from January 1991 to September 1993 and that the requirement of the petition premises sought on the ground of own use and occupation by the sons of the petitioner is without bona fide . On these grounds, the respondent/ tenant sought for dismissal of the petition. 4. On these grounds, the respondent/ tenant sought for dismissal of the petition. 4. Before the Rent Controller, the petitioner examined himself as P.W.1 and to rebut the evidence, the deceased first respondent/tenant examined himself as R.W.1 besides examining one Jayachandran as R.W.2. Exs.A.1 to A.6 were marked on the side of the petitioner while Exs.B.1 to B.41 were marked on the side of the second respondent. The Rent Controller, after considering the evidence adduced on both sides and the Exhibits marked, ordered eviction of the respondent/tenant from the petition premises on the ground of willful default in payment of rent but refused to order eviction on the ground of own use and occupation for the purpose of carrying on business by the sons of the petitioner. The order of eviction passed by the Rent Controller on the ground of willful default in payment of rent was challenged by the tenant in Rent Control Appeal and the Rent Control Appellate Authority allowed the appeal setting aside the order of eviction passed by the Rent Controller. Aggrieved at the said judgment, the landlord as Revision Petitioner has come forward with this Civil Revision Petition. 5. Heard the learned counsel for the Revision Petitioner/landlord and the learned counsel for the respondent/tenant. 6. The tenancy and the quantum of rent is admitted in the petition. It is the specific case of the Revision petitioner/landlord that the deceased first respondent has committed wilful default in payment of rent from January 1993 to September 1993 and, therefore, the rent sent for the month of January 1993 on 5.2.1993 by Money Order was refused since the arrears of rent from January 1991 to December 1992 was not paid. In the notice Ex.A.3 (Ex. B.7) dated 22.3.1993, it is stated by the landlord that the deceased first respondent committed default wilfully in payment of rent from January 1990 for about 37 months at the rate of Rs.400 per month. The notice was replied under Ex.B.8 on 6.4.1993 denying that the deceased first respondent has committed wilful default in payment of rent from January 1990 and further stating that the rent sent for the month of January 1993 on 5.2.1993 by Money Order was refused and the rent sent on 9.3.1993 for the months of January 1993 and February 1993 was also refused. Theref ore, the tenant filed petition in H.R.C.O.P. No. 23 of 1993 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’) for deposit of rent in Court. In paragraph 4 of Ex.B.39, copy of the petition in H.R.C.O.P. No. 23 of 1993, it is stated that the rent for the month of December 1992 was paid directly. Though it is the case of the landlord as per notice Ex. B.7 dated 22.3.1993 that the deceased first respondent committed default in payment of rent wilfully from January 1990, in the Rent Control Original Petition, it is stated that the deceased first respondent has committed wilful default in payment of rent from January 1991. It is not stated in the petition that after notice Ex.B.7 and the exchange of notices between parties, the deceased first respondent paid rent up to December 1990 so as to say that at the time of filing of the Rent Control Original Petition, the deceased first respondent has committed wilful default in payment of rent from January 1991 to September 1993. 7. It is seen from Ex.B.39, copy of the petition in H.R.C.O.P. No. 23 of 1993 filed under Section 8(5) of the Act, that the rent sent for the month of January 1993 on 5.2.1993 and the rent sent for the months of January and February 1993 on 9.3.1993 were refused and the landlord also not informed the tenant about the name of the Bank for deposit of rent to the credit of the landlord. It appears that the said petition was allowed after contest on 27.10.1994. In fact, as per Ex. B.40, it was informed by the learned counsel for the landlord that if the rental amount is sent by Money Order, he is willing to receive the same and also requested him to send rent for the subsequent months by Money Order directly to the landlord. Ex.B.40 is dated 28.12.1994. According to the landlord, the tenant has committed default wilfully in payment of rent from January 1990, as per Ex.B.7 and from January 1991 to September 1993 as per the Rent Control Original Petition. It is contended by the tenant that the landlord is not in the habit of issuing receipts for the rental amount paid. Ex.B.40 is dated 28.12.1994. According to the landlord, the tenant has committed default wilfully in payment of rent from January 1990, as per Ex.B.7 and from January 1991 to September 1993 as per the Rent Control Original Petition. It is contended by the tenant that the landlord is not in the habit of issuing receipts for the rental amount paid. According to the landlord, he issued rental receipt for the rental amount paid by the tenant and in fact, one such receipt issued is Ex.A.5, which relates to the month of May 1978 and is dated 7.6.1978, and also Ex. B.41 dated 7.11.1986 issued to the deceased first respondent. But no other receipt or counterfoil of the rental book has been filed by the landlord to show that the deceased first respondent paid rent only up to the month of December 1989 as claimed in Ex. B.7 or up to December 1990 as claimed in the Rent Control Original Petition and that thereafter, the deceased first respondent failed in payment of rental arrears and with the deliberate intention, he committed default in payment of rent either from January 1990 or from January 1991 to September 1993. The tenant also filed H.R.C.O.P. No. 23 of 1993 under Section 8(5) of the Act for depositing rent in Court since the landlord refused to receive the rent for the month of January 1993 on 9.2.1993 and also rent for the months of January 1993 and February 1993 on 9.3.1993 and that the said petition was allowed and he deposited the rent for the month of January 1993 onwards. Therefore, it cannot be said that the tenant has committed default in payment of rent wilfully from January 1993 to September 1993. 8. As regards non-payment of rent either from January 1990 or from January 1991 till 1992 wilfully by the tenant/deceased first respondent, the same has not been proved by the landlord. It is also stated by the tenant that the landlord used to endorse the rental amount received in the account book of the tenant and accordingly, he has made endorsement in Exs.B.9 to B.38 relating to the period December 1990 to March 1993. It is also stated by the tenant that the landlord used to endorse the rental amount received in the account book of the tenant and accordingly, he has made endorsement in Exs.B.9 to B.38 relating to the period December 1990 to March 1993. As rightly pointed by the learned Rent Control Appellate Authority that in the said account book maintained to receive the rental amount paid by the tenant, the transaction relating to the textile business carried on by the tenant has been written and as such, it appears that such endorsement in the account book maintained by the tenant have been proved. Merely because the said entries have been made by the same Accountant by using the same ink, it cannot be said that such accounts are unproved. It cannot also be said that Exs.B.9 to B.38 are unproved. The landlord has failed to prove that the tenant/deceased first respondent has committed default in payment of rent wilfully either from January 1990 as claimed in notice Ex.B.7 or from January 1991 to September 1993 as claimed in the Rent Control Original Petition. Therefore, the finding recorded by the Rent Control Appellate Authority that the tenant has not committed wilful default in payment of rent from January 1991 to September 1993 need not be interfered with. 9. As rightly pointed out by the learned Rent Control Appellate Authority that though the Rent Control Original Petition has been filed to the effect that the petition premises is sought for own use and occupation for the purpose of the business carried on by him and also for the purpose of carrying on business by his two sons, the petition is not filed under Section 10(3)(a)(iii) of the Act but it is filed only under Section 14(1)(b) of the Act for which no averments have been made with regard to such bona fide requirement. In the evidence also, the landlord as P.W.1 has stated that the petition premises is required for the purpose of carrying on business by his son Ravi, who was carrying on business in the rental premises as organizer of Peerless Insurance Company at 18, Gurusamy Pillai Lane. Though Ex. A.6 has been filed to show that Ravi, who is the son of the landlord, is carrying on business as organizer in Peerless Insurance Company, it is not proved that he is carrying on such business in the rented premises. Though Ex. A.6 has been filed to show that Ravi, who is the son of the landlord, is carrying on business as organizer in Peerless Insurance Company, it is not proved that he is carrying on such business in the rented premises. Therefore, the eviction sought for on that ground has been rightly refused by the learned Rent Controller and confirmed by the learned Rent Control Appellate Authority. 10. In the result, this Civil Revision Petition is dismissed. No cost. The judgment and decree passed by the Rent Control Appellate Authority are confirmed.