Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 1772 (MAD)

Ashok Kumar v. A. Rajpal

2010-04-15

M.VENUGOPAL

body2010
Judgment :- 1. The Revision petitioner/Appellant/Tenant has filed this civil revision petition as against the order dated 12.10.2009 in R.C.A.No.847 of 2008 passed by the Learned Appellate Authority viz; VII Judge, Small Causes Court, Chennai in affirming the order and decree dated 24.10.2008 in R.C.O.P.No.731 of 2008 passed by the Learned Rent Controller viz; XII Judge, Court of Small Causes, Chennai. 2. The Learned Appellate Authority viz; VII Judge, Court of Small Causes, Chennai, while passing orders in R.C.A.No.847 of 2008 dated 12.10.2009 has among other things observed that 'the Revision petitioner/Tenant committed wilful default in payment of rent and resultantly, dismissed the Rent Control Appeal without costs.' 3. Aggrieved against the said order dated 12.10.2009 in R.C.A.No.847 of 2008 passed by the Learned Appellate Authority, viz; VII Judge, Court of Small Causes, Chennai, the Revision petitioner/Tenant has projected this Civil Revision petition before this Court. 4. The point that arises for rumination in this Civil Revision Petition is Whether the Revision petitioner/Appellant/Tenant has committed an act of wilful default in payment of monthly rent for the period from 1.6.2007 till date of filing of the Rent Control Original Petition No.731 of 2008? Contentions, Discussions and Findings: 5. According to the learned counsel for the Revision petitioner/Appellant/Tenant the Learned Appellate Authority has committed an error in arriving at the conclusion that the Revision petitioner has committed wilful default in payment of monthly rent and as a matter of fact, there has been no Attornment of tenancy at all and further, that the Revision petitioner/Tenant started paying the monthly rent of Rs.500/- to the Respondent/Landlord to March 2008 soon after the receipt of Ex.P2, lawyer's notice dated 3.3.2008 and the Respondent/Landlord after receiving the rent has not issued the receipts. 6. Added further, it is the contention on the side of the Revision petitioner/Tenant that the Learned Appellate Authority has gone wrong in holding that the monthly rent of Rs.1,200/- is only based on Ex.P.1, shop agreement dated 18.11.2005 a created document and that the Revision petitioner/Tenant is in arrears of rent from June 2007 and witness P.W.2 ought not to have been relied upon. Indeed, the Learned Appellate Authority has erroneously, shifted the burden on the part of the Revision petitioner/Tenant to disprove the signature in Ex.P.1 shop agreement dated 18.11.2005, but these aspects have not been looked into by the Learned Appellate Authority in a real perspective, which has resulted in an impugned order being passed against the Revision petitioner/Tenant and therefore, prays for allowing the Civil Revision Petition in the interest of justice. 7. In response, the learned counsel for the Respondent/Landlord contends that the Learned Appellate Authority after appreciating the oral and documentary evidence on record has come to right conclusion that the Revision petitioner/Tenant has committed wilful default in payment of monthly rent from 1.6.2007 till date of filing of the main Rent control original petition and the same need not be disturbed by this Court at this stage of the revision. 8. In the present case, the oral evidence of P.W.1 and 2 and R.W.1 assume vital significance. 9. P.W.1/Respondent(Landlord) in his evidence has stated that Ex.P.1 is the shop agreement dated 18.11.2005 entered into between erstwhile Landlord and the Revision Petitioner/Tenant in respect of the petition mentioned Tea shop and as per Ex.P.1 shop agreement, the monthly rent is Rs.2,250/-and that the Revision Petitioner has paid an advance of Rs.35,000/-and he has informed the landlord to adjust the advance of Rs.35,000/-at the time of execution of sale deed and to vacate the petition mentioned premises in June 2007 in the presence of witnesses orally and agreed to vacate the petition mentioned premises within one month and for that month it was agreed that no rent is to be paid and after filing of the petition, the Revision petitioner/Tenant sent a sum of Rs.500/-through money order for the months of May and June 2008 and he received the same without prejudice to his right in the case. 10. is the further evidence of Landlord that he issued a lawyer's notice dated 3.3.2008 to the Revision petitioner/Tenant for which, the Revision petitioner issued a reply dated 7.3.2008 and since he has committed default he is liable to be evicted from the petition mentioned premises. 11. 10. is the further evidence of Landlord that he issued a lawyer's notice dated 3.3.2008 to the Revision petitioner/Tenant for which, the Revision petitioner issued a reply dated 7.3.2008 and since he has committed default he is liable to be evicted from the petition mentioned premises. 11. It is the evidence of P.W.1 in cross-examination that in Ex.P.2, lawyer's notice dated 3.3.2008, there is no mentioning of the quantum of rent and that in the petition, he has stated there is no arrears of rent from July 2007 to February 2008 and moreover, after May 2008, the Revision petitioner/Tenant is paying the monthly rent regularly. 12. P.W.2/Erstwhile Landlord in his evidence has deposed that as per Ex.P.5 sale deed dated 22.6.2007, he has sold the property to the Respondent/Landlord and that he informed the Revision petitioner/Tenant about his intention to sell the property. Ex.P.1 dated 18.11.2005 is the Shop Rental Agreement between P.W.2 Kandasamy and R.W.1/the Revision petitioner/Tenant and initially the Revision petitioner/Tenant paid the monthly rent of Rs.2,250/- and paid an advance of Rs.35,000/-and he has deducted the advance sum of Rs.35,000/-towards rental arrears of the Revision petitioner/Tenant and after effecting the sale of the property as per Ex.P.5 sale deed dated 22.6.2007, the Revision petitioner/Tenant has not paid the monthly rent to him. In cross-examination it is the evidence of P.W.2/former Landlord that it is incorrect to state that after selling the property in June 2007, there has been in receipt of monthly rent from the Revision petitioner/Tenant till February 2008. 13. The Revision petitioner/Tenant in his evidence R.W.1 has deposed that as per Ex.P.1 dated 18.11.2005 shop agreement entered into between the Revision petitioner/Tenant and P.W.2/erstwhile landlord, the monthly rent is Rs.500/-and that he will not issue the receipt for payment of monthly rent and till February 2008, he has tendered the monthly rent to him and that the Respondent/Landlord has refused to receive the money order sent for March and April months' rent and later, he has received the May and June months' rent. 14. R.W.1 in his cross-examination has stated that there is no document to show that he has paid Rs.3,00,000/- as an advance to the erstwhile landlord and it is incorrect to state that he has committed wilful default for the period from June 2007 till date. 15. 14. R.W.1 in his cross-examination has stated that there is no document to show that he has paid Rs.3,00,000/- as an advance to the erstwhile landlord and it is incorrect to state that he has committed wilful default for the period from June 2007 till date. 15. It is to be borne in mind that as per Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, a duty is enjoined upon a tenant to tender every month rent or to make payment in this regard if he is to take benefits of the ingredients of the Act. 16. The considered opinion of this Court is that law has not come to the point that the Landlord must seek the Tenant for collection of rent and not for the Tenant to seek the Landlord to pay the rent. To put it precisely, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes a detailed procedure for the payment of rent. 17. Further, it is an axiomatic fact that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord. Moreover, it is the bounden duty of a tenant to pay the rent to the landlord regularly and not to commit any default. 18. The term of 'wilful' in the Act has not been employed in the sense culpability. According to the Dictionary meaning, it means of a situation for which compulsion or ignorance or accident cannot be pleaded as an excuse in non-payment of arrears of rent, it is the duty of the Landlord to prove beyond doubt that the Tenant has shown supine indifference and callousness. 19. In this connection, this Court points out that Section 10(2)(i) of the Act relating to wilful default is a very stringent one and therefore, a Rent Controller/a Court of Law has to administer it cautiously and accept the prayer of the landlord for eviction only under specified circumstances which satisfies every ingredient of the sub-section. 20. 19. In this connection, this Court points out that Section 10(2)(i) of the Act relating to wilful default is a very stringent one and therefore, a Rent Controller/a Court of Law has to administer it cautiously and accept the prayer of the landlord for eviction only under specified circumstances which satisfies every ingredient of the sub-section. 20. Though the Revision petitioner/Tenant in his cross examination has deposed that the erstwhile Landlord P.W.2 will not issue receipt for the rent paid by him, this Court at this juncture, pertinently points out that when a tenant comes with a reply that he has paid the rent and that the landlord never issues receipts, a Court of Law or a Rent Controller should not presume necessarily that the tenant has paid the rent. Really, Sub Section (2) of Section 8 requires where a landlord has refused to issue receipts or evades receipts, the tenant is to call upon the Landlord by means of issuance of notice granting him ten days' time to notify a Bank with account Number etc. 21. The object of comparison of a signature as per Section 73 of the Indian Evidence Act is to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made. A Rent Controller/Appellate Authority/a Court of Law can compare the writings so as to appreciate properly the other evidence produced before it as per decision S Vs. VINAYAGA CHANDRA, AIR 1967 SC 778 . From the scrutiny of Ex.P1 Shop Rental Agreement and the available materials on record which do contain the signature of the Revision Petitioner/Tenant, it transpires that the signature seen in Ex.P1 Shop Rental Agreement is that of the Revision Petitioner/Tenant, in the considered opinion of this Court. 22. Coming to the facts of the present case on hand, it is to be pointed out that the evidence of erstwhile landlord/P.W.2 is quite contra to the stand taken by the Revision petitioner/Tenant and the Revision petitioner/Tenant is perforced to prove that he has paid the monthly rent to the landlord regularly and that he is not in default in payment of monthly rent. As a matter of fact, P.W.2 has categorically denied that he has received the rent from the Revision petitioner/Tenant till February 2008. As a matter of fact, P.W.2 has categorically denied that he has received the rent from the Revision petitioner/Tenant till February 2008. There is no clinching or satisfactory evidence on the side of the Revision petitioner/Tenant to prove to the satisfaction of this Court that he has paid the rent for the default period in question. Also, after P.W.1 informing the Revision petitioner/Tenant in regard to sale transactions orally, the Revision petitioner has not paid the monthly rent. By means of Ex.P.5 sale deed dated 22.6.2007 P.W.1/Landlord has become the owner of the property and therefore, it is the bounden duty of the Revision petitioner/Tenant to pay the monthly rent to the Respondent/Landlord and from this statutory obligation, the Revision petitioner/Tenant cannot wriggle out in the considered opinion of this Court. It cannot be forgotten that P.W.2/Erstwhile Landlord in his evidence has clearly stated that an advance of Rs.35,00,000/- paid by the Revision petitioner/Tenant has already been adjusted towards rent prior to the sale transaction in favour of the revision petitioner. In short, the monthly rent as seen from Ex.P.1, shop agreement dated 18.11.2005 is Rs.2,250/-.On a careful scrutiny of the oral and documentary evidence available on record, this Court comes to an inescapable conclusion that there is no satisfactory proof that the Revision petitioner/Tenant has paid the monthly rent for the period from 1.6.2007 till date of filing of the main Rent Control Original Petition and therefore, this Court concludes that the Revision petitioner/Tenant has committed wilful default in payment of rent for the period in issue and resultantly, the Civil Revision Petition fails. 23. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The Civil Revision Petitioner/Tenant is granted two months time from the date of receipt of a copy of this order to quit and deliver vacant possession of the shop portion consisting of a Tea shop and Petty shop mentioned in the Schedule of the Rent Control Original Petition No.731 of 2008. Consequently, connected miscellaneous petition is also closed.