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2007 DIGILAW 2265 (MAD)

S. M. Irshad Ahamad v. S. E. A. Usman Basha Sahib

2007-07-19

M.CHOCKALINGAM

body2007
Judgment : 1. This order shall govern these two Civil Revision Petitions, namely C.R.P. Nos.26 and 27 of 2006, wherein the tenant, who is directed to vacate from the premises in question, have challenged the two orders of the Rent Control Appellate Authority, namely the Subordinate Judge, Gudiyatham, made in R.C.A. Nos.2 and 3 of 2004, whereby the dismissal order in R.C.O.P. No.15 of 1999, which was filed seeking an order of eviction of the tenant from the premises in question on the ground of wilful default, demolition and reconstruction, was challenged by the landlord/respondent herein and the other order, allowing the Petition filed under Section 8(5) of the Act by the tenant, was also challenged by the landlord respectively. 2. The Court heard the learned counsel on either side. Concedingly, the revision petitioner herein is the tenant under the landlord/respondent in these two Civil Revision Petitions in respect of a shop premises at Gudiyatham morefully described in the Petition for eviction from the year 1991. The original rent was enhanced and at the time when the R.C.O.P. was filed, the rent was Rs.215/-per month. The respondent/landlord filed R.C.O.P. No.15 of 1999 for eviction on the ground of wilful default and demolition and reconstruction, following the exchange of notices between the parties. Equally, the revision petitioner/tenant has also filed R.C.O.P. No.19 of 1999 for the deposit of rental into the Court under Section 8(5) of the Act. Both the Petitions were taken up for enquiry by the Rent Controller, which resulted in dismissal of the Petition filed by the landlord and allowed the Petition of the tenant. Aggrieved the landlord preferred two Appeals therefrom, which were also taken up for enquiry by the Appellate forum, namely the Subordinate Judge, Gudiyatham and both the Appeals were allowed. Hence, these two Civil Revision Petitions have arisen before this Court at the instance of the tenant. .3. Aggrieved the landlord preferred two Appeals therefrom, which were also taken up for enquiry by the Appellate forum, namely the Subordinate Judge, Gudiyatham and both the Appeals were allowed. Hence, these two Civil Revision Petitions have arisen before this Court at the instance of the tenant. .3. The learned counsel for the petitioner would submit that both the grounds of wilful default and demolition and reconstruction were not made out and hence, the Rent Controller has dismissed the Petition, denying the relief; that the tenancy commenced from the year 1991; that there was no rental arrears at any point of time; that the landlord has asked for enhancement of rental to Rs.600/-, but the tenant was not amenable; that the rentals were tendered, but it was refused to receive; that the rental from May, 1999 to July, 1999 were sent through money order, but it was refused; that while the matter stood thus, there was exchange of notices between the parties; that following the same, the Petition was filed by the respondent/landlord and the revision petitioner/tenant has also filed a Petition for depositing the rental, since the landlord refused to receive when it was tendered in person and also by money order and thus, the rental arrears, even as per the Petition, was only for three months; that it was neither default nor wilful default and hence, the Rent Controller, in appreciation of the circumstances available and marshalling the evidence, has dismissed the Petition rightly, but the Appellate Authority has erroneously reversed the same, granting the order of eviction and hence, it has got to be set aside. 4. 4. Added further the learned counsel that so far as the ground of demolition and reconstruction was concerned, it was denied by the Rent Controller and since it was not a ground urged by the landlord before the Appellate forum, it did not arise for consideration and hence, on that ground is concerned, it has reached finality and thus, the only question so far as the wilful default was concerned, there was no wilful default at all, since there was complete denial of receiving rental and that the revision petitioner was compelled to file a Petition in R.C.O.P. No.19 of 1999 to deposit the rental and hence, that Application should have been ordered, but it was erroneously reversed by the Appellate Authority and hence, the orders of the Appellate Authority have got to be set aside and the orders of the Rent Controller have got to be restored. .5. Contrary to the above, the learned counsel for the respondent would submit that it was a clear case of wilful default; that the Rent Controller has not properly considered the evidence adduced and has dismissed the Petition; that the same was set right by the Appellate forum by marshalling the evidence proper; that there was default in making payment of rental from May, 1999 to July, 1999 for a period of three months; that notice was issued on 18. 1999; that the same was replied on 28. 1999; that there was rejoinder on 9. 1999; that thereafter, the R.C.O.P. was filed on 10. 1999; that service was made on the respondent/revision petitioner on 110. 1999 and only thereafter, the revision petitioner filed R.C.O.P. for deposit of rental on 11. 1999; that the same was replied on 28. 1999; that there was rejoinder on 9. 1999; that thereafter, the R.C.O.P. was filed on 10. 1999; that service was made on the respondent/revision petitioner on 110. 1999 and only thereafter, the revision petitioner filed R.C.O.P. for deposit of rental on 11. 1999 and under these circumstances, there was accumulation of arrears of rental; that the contentions put forth by the tenant that he sent money order and there was refusal were all found to be false and hence, the rental was neither tendered in person nor sent through money order and that it was agreed between the parties that the rental should be paid month-wise, but not done so; that in a given case like this where the rental has not been paid strictly as per the agreement entered into between the parties, it has to be held as one of willful default and hence, the Appellate Authority has marshalled the evidence available and found wilful default and it has got to be sustained. The learned counsel has relied on the decisions of this Court reported in Thayammal v. K. Subramaniam, 1989 (1) MLJ 407, and The Nilgiris Co-operative Marketing Society v. Uthandi, 1996 (2) MLJ 745. 6. The Court has paid its anxious consideration on the submissions made. After doing so, the Court is of the considered opinion that the respondent/landlord has not made out a case for wilful default, as one envisaged in the provisions of the Act. Concedingly, the revision petitioner/tenant has been in the premises from the year 1991 onwards. It is not the case of the landlord that there was any non-payment of rental or there was arrears in breach of agreement between the parties till April, 1999. According to the landlord, there was arrears from May, 1999 to July, 1999 and thus, there was rental arrears for three months. In a given case like this, the landlord should prove not only there was default in making payment of rental, but also must show that there was wilful default. Default in payment of rental is not the one what has to be proved, but a step forward that the wilful default in payment of rental must be proved by available circumstances. In the instant case, concedingly, there was default in making payment of rental. Default in payment of rental is not the one what has to be proved, but a step forward that the wilful default in payment of rental must be proved by available circumstances. In the instant case, concedingly, there was default in making payment of rental. According to the petitioner, it was from May, 1999 to July, 1999 for a period of three months. Considering the circumstances narrated above, it would be very difficult to hold that there was any supine indifference or recalcitrant attitude on the part of the tenant to call it as wilful default. According to the tenant, when he tendered rental in person, the landlord refused to receive the same, demanding Rs.600/- per month from Rs.215/-and thus, he sent the rental through money order on 27. 1999 for a period of three months. The receipt for sending the money order and also the returned coupon with refusal endorsement were produced. .7. The only contention put forth by the landlord before the Authorities below and equally here also is that the contention of the other side that it was sent through money order was only the ruse invented for the purpose of the case. According to the tenant, the money order was sent on 27. 1999. There was exchange of notices is an admitted fact. The notice was issued by the landlord under Ex.P.1 on 18. 1999 and the reply notice was sent on 28. 1999. In the course of the reply, it has been categorically stated in paragraph 2 that when the rental was made, the landlord refused to receive, since he demanded for enhancement of rent at Rs.600/- and thereafter, the money order was sent and the same was also refused. It is pertinent to point out that the reply notice was followed by the rejoinder on 9. 1999, wherein it has been categorically mentioned that it was true that there was money order sent, but it was manoeuvred to be returned as refused. Thus, the fact that the money order was sent by the tenant is true. 8. It is pertinent to point out that sending money order, notice, reply notice and rejoinder all have taken place even prior to the filing of the R.C.O.P. on 10. 1999. Thus, all would indicate that the petitioner/tenant has actually sent the amount by way of money order, but the same was refused. 8. It is pertinent to point out that sending money order, notice, reply notice and rejoinder all have taken place even prior to the filing of the R.C.O.P. on 10. 1999. Thus, all would indicate that the petitioner/tenant has actually sent the amount by way of money order, but the same was refused. Now, what was contended by the learned counsel for landlord is that the Petition was filed by the tenant on 11. 1999 for depositing the rental and that Application requires an order of dismissal, since the money order, which was sent, was not procedurally contemplated under the Act and if there was refusal to receive the rental by the landlord, it was as per the procedure envisaged under the Act. According to him, originally, there was exchange of notices and thereafter, all procedures would have been followed, but directly the tenant has sent the money order, which is not procedurally contemplated and hence, it should be construed as wilful default. While the Court is of the considered opinion that the tenant has been in the property for nearly 7 or 8 years and has been making payment of rental all along the period regularly and there was no complaint of arrears at any point of time and there was arrears, according to the landlord, from May, 1999 to July, 1999 for a period of three months and the same has also been sent through the money order, but it was refused by the landlord even before filing the R.C.O.P., thus Court is unable to agree with the landlord’s case that there was any wilful default, since the procedures, as contemplated under the Act, have not been followed in sending money order. This would show that he has been challenging only the sending of money order, but the refusal of money order by the landlord is for the reasons best known to him. Under these circumstances, the landlord has miserably failed to show that there was any recalcitrant attitude or supine indifference on the part of the tenant, warranting to hold that it was wilful default. 9. It is true, there was arrears of rental for a period of three months, but in the past, there was no complaint of arrears. The rental was sent through money order for the reasons stated by the tenant in the course of the reply notice. 9. It is true, there was arrears of rental for a period of three months, but in the past, there was no complaint of arrears. The rental was sent through money order for the reasons stated by the tenant in the course of the reply notice. The Court is of the considered opinion that the landlord has miserably failed to prove that there was wilful default. The Rent Controller has marshalled the evidence proper and has found against the landlord. But, it has been reversed by the Appellate Authority erroneously. Hence, the orders of the Appellate Authority have got to be made undone only by upsetting the same. Accordingly, the orders of the Appellate Authority are set aside. So far as the ground of demolition and reconstruction is concerned, the Rent Controller has denied the same, but it was not the case before the Appellate Forum and hence, it has reached finality. So far as C.R.P. No.27 of 2006 is concerned, there were reasons available for the tenant to deposit the rent into the Court. Accordingly, the order of the Rent Controller in this regard is restored. Both the Civil Revision Petitions are ordered accordingly. No costs. Consequently, connected C.M.P. and V.C.M.P. are closed.