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2012 DIGILAW 344 (MAD)

P. T. Sivaraman v. T. R. Gopala Krishnan

2012-01-24

R.S.RAMANATHAN

body2012
Judgment :- 1. The tenant is the revision petitioner. The respondent/ landlord filed R.C.O.P.No.2216 of 2006 for eviction on the ground of willful default and change of use. 2. The learned Rent Controller ordered eviction and the same was confirmed by the Rent Control Appellate Authority and aggrieved by the same this revision is filed. 3. It is submitted by the learned counsel for the revision petitioner/ tenant that the Court below erred in holding that the tenant has committed willful default in payment of rent and it is the specific case of the revision petitioner/ tenant was that he was paying the rent through bearer cheque that was encashed by the Servant of the landlord and the revision petitioner/ tenant has also proved the presentation of the cheque issued by the revision petitioner/ tenant to the Servant of the landlord by marking Exs.P8 and P9 and without appreciating those exhibits, the Courts below erred in holding that the tenant has committed willful default in payment of rent. He further submitted that the Rent Controller being a persona designata, cannot decide the complicated question of fraud and forgery and it is the specific case of the revision petitioner/ tenant that the Servant of the landlord has encashed the cheques Exs.P8 and P9 by signing in English gave false evidence as if he has not received those cheques and encashed them and therefore the Rent Controller cannot go into the aspect of fraud and forgery and that aspect can be decided by the competent Civil Court and hence the orders of the Courts below is liable to be set aside. He further submitted that there is no question of change of use by the revision petitioner/ tenant and admittedly the premises was taken on lease for running a Hotel business and now the revision petitioner/ tenant is running a Lodging House and both the business are non-residential and commercial one and hence the eviction cannot be ordered on the ground of change of use. 4. I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly, the rent payable by the revision petitioner is Rs.3750/- per month. 4. I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly, the rent payable by the revision petitioner is Rs.3750/- per month. It is a case of the landlord/ respondent that the revision petitioner/ tenant used to pay the rent by way of cheque and from December 2005 he neglected to pay the rent and therefore the landlord/ respondent issued legal notice dated 5.5.2006 calling upon the tenant to pay the arrears of rent from December 2005 and thereafter also the tenant had committed default and he issued another notice which was received by the tenant on 15.5.2006 and even thereafter the tenant has not paid the rent and therefore the tenant is liable to be evicted. 5. The case of the revision petitioner/ tenant was that he has constructed three floors building with the consent of landlord by spending more than Rs.15 lakhs and he was willing to pay the enhanced rent with 10% increase and the land lord refused to receive the rent and sent a notice. Even after the receipt of notice he approached the landlord and the landlord informed him that the legal notice was issued only as a formality and he would receive the rent as usual and believed the words of the landlord he did not pay the rent immediately thereafter. It is further submitted that the tenant is in the habit of paying the rent once in four months or five months and admittedly under Exs.P8 and P9 he sent a sum of Rs.15,000/- and Rs.20,000/-towards rent and that was encashed by the landlord and therefore there is no willful default on the part of the tenant. 6. Admittedly, the landlord was receiving the rent to his Servant C.K.Palani and whenever cheques were received towards the rent those cheques were presented by C.K.Palani by signing his name in Tamil and the amount was withdrawn by him. But in Exs. P8 and P9 the signature found on the reverse side of the cheques was in English and the landlord examined the said Palani as PW3 and he has clearly given evidence that the signatures found in Exs.P8 and P9 are not his signature and he does not know to sign in English. But in Exs. P8 and P9 the signature found on the reverse side of the cheques was in English and the landlord examined the said Palani as PW3 and he has clearly given evidence that the signatures found in Exs.P8 and P9 are not his signature and he does not know to sign in English. This aspect was rightly considered by the Courts below to arrive at a conclusion that the tenant has committed default and without paying the rent he has created records as if the rents were paid and received by the landlord. Further, it is proved by the landlord that on the earlier occasion the cheques given by the tenant were encashed by the said Palani and those exhibits were marked as Exs.P10 and P11. In those two exhibits the said Palani signed only in Tamil and hence the Courts below rightly held that the signature found in Exs.P8 and P9 are not that of Palani and considering the fact that the tenant has not paid the rent every month and has paid the rent in lump sum, even assuming that Exs.P8 and P9 were encashed by the landlord, the tenant has committed willful default in payment of rent and ordered eviction. 7. It is further submitted by the learned counsel for the respondent/ landlord that even during the pendency of the first appeal the revision petitioner/ tenant has failed to pay the rent from November 2009 to August 2011 and the contractual arrears of rent is Rs.82,500/- and Fair rent was also fixed by the authority at Rs.20,293/- and that amount was also not paid. This aspect was also not disputed by the learned counsel for the revision petitioner. Considering all these aspects both the Courts below have rightly held that the revision petitioner/ tenant has committed willful default in payment of rent and ordered eviction. 8. Hence, I do not find any infirmity in the orders of the Courts below and the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.