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2012 DIGILAW 4343 (MAD)

N. Sundaresan v. S. Chandrasekaran

2012-10-16

R.S.RAMANATHAN

body2012
Judgment Tenant is the revision petitioner. 2. The respondent/landlord filed petition for eviction on the ground of wilful default. It is the case of the respondent/landlord that the rent for the premises is Rs.1600/= per month and the tenant has committed wilful default in payment of rent from 1.1.2002 to 31.5.2003 and therefore, he is liable to be evicted. The revision petitioner contested the application stating that the rent for the premises is not Rs.1600/= per month and it is only Rs.1200/= per month and he has paid an advance of Rs.25,000/= and he has paid rent upto May 2003 and the same has been acknowledged by the landlord in the chit given by him and from the month of June 2003, he was liable to pay the rent and the landlord refused to receive the rent when tendered and therefore, he sent the rent by money order and that was refused and for the month of July also, he sent the rent by money order and that was also refused and the landlord attempted to evict him by force and therefore, after giving complaint to the police, he filed the suit in O.S.No.3330 of 2003 and also obtained an order of injunction in I.A.No.1148 of 2003 and he also filed application in R.C.O.P.No.1799 of 2003 under section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control Act for depositing the rent and he has been depositing the rent into court as per the order passed in R.C.O.P.No.1799 of 2003 and therefore, there is no default much less wilful default committed by the revision petitioner/tenant. 3. The learned Rent Controller ordered eviction holding that the rent is Rs.1200/= per month and the tenant has not proved the payment of Rs.25,000/= towards advance and the tenant has failed to prove that he paid the rent upto May 2003 as alleged by him and he has committed wilful default in payment of rent from 1.1.2002 and his subsequent conduct also proved that he was guilty of wilful default and ordered eviction. The learned Rent Control Appellate Authority, after independently appreciating the facts of the case and after referring to various judgments came to the conclusion that the revision petitioner/tenant has committed default in payment of rent and confirmed the order of eviction. Aggrieved by the same, this revision is filed. 4. The learned Rent Control Appellate Authority, after independently appreciating the facts of the case and after referring to various judgments came to the conclusion that the revision petitioner/tenant has committed default in payment of rent and confirmed the order of eviction. Aggrieved by the same, this revision is filed. 4. Learned counsel for the revision petitioner submitted that both the courts below failed to appreciate the fact that the revision petitioner/tenant filed R.C.O.P.No.1799 of 2003 for depositing the rent and as per the order passed in that petition, he was regular in depositing the rent and that fact is also proved by the revision petitioner by getting an order from the court to withdraw the amount deposited by him in compliance with the conditional order in R.C.A.No.107 of 2004 and thereafter also, the rent was paid regularly and there is no arrears of rent and the tenant has not committed wilful default and the landlord has admitted in evidence that he was having a note where he maintained the rent paid by each tenant and he suppressed that document despite the notice given and when the landlord suppressed the said document which would prove the payment of rent by the tenant, the court ought to have drawn adverse inference against the landlord and ought to have held that till May 2003, the rent has been paid and the case of the landlord that the tenant has committed wilful default in payment of rent from 1.1.2002 ought to have been rejected. He also brought to my notice the findings given in R.C.O.P.No.1799 of 2003 wherein the Rent Controller held that the rent form January 2004 to 2006 was deposited by the tenant and therefore, submitted that the tenant has not committed any default much less wilful default and the court below, without properly appreciating the conduct of the landlord, erred in passing the order of eviction and the eviction order is liable to be set aside. 5. On the other hand, the learned counsel for the respondent/landlord submitted that R.C.O.P.No.1799 of 2003 filed by the revision petitioner/tenant was dismissed and he has not filed any appeal against that order. 5. On the other hand, the learned counsel for the respondent/landlord submitted that R.C.O.P.No.1799 of 2003 filed by the revision petitioner/tenant was dismissed and he has not filed any appeal against that order. He further submitted that the landlord/respondent filed M.P. No. 824 of 2003 in R.C.O.P.No.1308 of 2003 under section 11(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act and that petition was ordered directing the revision petitioner/tenant to pay the rent from 1.1.2002 to May 2003 and also to pay the subsequent rents as per the order passed in R.C.O.P.No.1799 of 2003 and that order was challenged by the revision petitioner/tenant in R.C.A.No.107 of 2004 and the above appeal was dismissed and he was directed to pay the arrears of rent from January 2002 to May 2003 and also from December 2003 to January 2006 and that order was complied with by the revision petitioner/tenant and that would also prove that he has not paid the rent from January 2002 and the contention of the landlord has been upheld by the Rent Controller as well as by the appellate authority and the revision petitioner/tenant has not filed any appeal against the order passed in R.C.A.No.107 of 2004. He further submitted that no evidence has been let in to prove that the revision petitioner/tenant has deposited a sum of Rs.25,000/= and even in his notice, he did not plead that he paid Rs.25,000/= and that was introduced in the later pleadings and the evidence of RW2 and RW3 to prove the advance of Rs.25,000/= was also rejected by both the courts below and therefore, the concurrent findings of the courts below that the tenant has committed wilful default in payment of rent need not be disturbed in this revision. He further submitted that even during the pendency of the appeal before the Rent Control Appellate Authority, he was not paying the rent regularly and on 24.4.2008, he made payment of Rs.4800/= representing four months rent and thereafter, on 13.10.2008, he deposited a sum of Rs.14,940/= representing rent for various months including electricity and water charges and he deposited the rent for September to November 2008 on 12.2.2009 and he deposited the rent from January 2009 to July 2009 on 15.8.2009 and deposited the rent from October 2009 to June 2010 on 29.7.2010 and deposited the rent for July and August on 3.9.2010 and these facts would also prove that the revision petitioner/tenant was not regular in payment of rent despite the orders passed in R.C.A.No.1799 of 2003 and therefore, the conduct of the revision petitioner would clearly prove that he has committed wilful default in payment of rent. 6. I have perused the records and the judgments of both the courts below. It is seen from the judgment of both the courts below that both the learned Rent Controller and the Rent Control Appellate Authority passed the order of eviction after independently appreciating the facts both oral and documentary and also on the basis of various judgments. As rightly submitted by the learned counsel for the respondent, though the landlord has claimed Rs.1600/= per month as rent, the courts below have accepted the case of the revision petitioner/tenant and fixed the rent as Rs.1200/= per month. Further, in the earlier notice sent by the revision petitioner, he did not mention about the advance of Rs.25,000/= paid by him and no suggestion was also put to PW1 about the advance of Rs.25,000/= paid by the tenant. As a matter of fact, PW1 has stated that no amount has been received as advance in the cross-examination. Though R.Ws.2 and 3 were examined for payment of Rs.25,000/= as advance, in the absence of any pleadings, those witnesses were rightly rejected by the courts below and the findings of the courts below that the revision petitioner has not proved the payment of Rs.25,000/= as advance is correct and cannot be interfered in this revision. 7. Though R.Ws.2 and 3 were examined for payment of Rs.25,000/= as advance, in the absence of any pleadings, those witnesses were rightly rejected by the courts below and the findings of the courts below that the revision petitioner has not proved the payment of Rs.25,000/= as advance is correct and cannot be interfered in this revision. 7. As regards the arrears of rent, it is the specific case of the landlord that the tenant has committed wilful default in payment of rent from January 2002 to May 2003 and it is the case of the tenant that he paid rent till May 2003 and he sent the rent for June and July by money order and that was refused and after issuing notice, he deposited the rent into court as per the order passed in R.C.O.P.No.1799 of 2003. 8. Though in the chief examination, the landlord has admitted that he is maintaining a diary about the rent paid by the tenants, he has also given evidence that the said diary was not traced when notice was given to produce the document. However having regard to the evidence adduced by both parties, the learned Rent Controller held that the tenant has not paid rent from January 2002 to May 2003 and directed him to pay the rent representing Rs.25,800/= in the revision filed by the landlord. That order was challenged by the tenant in R.C.A.No.107 of 2004 and that appeal was also dismissed and the findings of the learned Rent Controller regarding non-payment of rent from January 2003 to May 2004 was confirmed and the Rent Control Appellate Authority also directed the revision petitioner to pay rent from December 2003 to January 2006. 9. It is seen from the order in R.C.O.P.No.1799 of 2003 that the tenant was depositing rent into the court till December 2006 and to comply with the order passed in R.C.A.No.107 of 2004, he got back the amount from the court and paid the rent to the landlord. Therefore, having regard to the fact that the tenant was depositing rent from December 2003 to January 2006, it cannot be construed that he has committed wilful default. Nevertheless, the conduct of the tenant thereafter confirms that he is in the habit of committing default in payment of rent and the default is nothing but wilful default. 10. Therefore, having regard to the fact that the tenant was depositing rent from December 2003 to January 2006, it cannot be construed that he has committed wilful default. Nevertheless, the conduct of the tenant thereafter confirms that he is in the habit of committing default in payment of rent and the default is nothing but wilful default. 10. As submitted by the learned counsel for the respondent, he paid the rent from January 2009 to July 2009 only on 5.8.2009, the rent for the period form October 2009 to May 2010 only on 29.7.2010 and the rent from June 2010 to August 2010 only on 3.9.2010. Therefore, even after the dismissal of R.C.O.P.No.1799 of 2003 filed by him under section 8(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, he was not regular in paying the rent and he was paying the rent in lumpsums and that conduct in committing default during the pendency of the proceedings and paying the rent in lumpsums for various months is nothing but wilful and hence, the courts below have rightly held that in the application for eviction on the ground of wilful default that the tenant has been irregular in payment of rent and was in the habit of paying the rent once in six months or once in seven months and hence, the default has to be construed as wilful and the said finding cannot be interfered in this revision and I also hold that the revision petitioner has committed wilful default in payment of rent. In the result the revision is dismissed and the orders of the courts below are confirmed. No costs. The connected miscellaneous petition is also dismissed. Later C.R.P. (NPD) No. 4495 of 2011 R.S. RAMANATHAN, J. After delivery of judgment, the learned counsel for the revision petitioner submitted that the petitioner may be given six months time for vacating and handing over possession of the property. 2. Considering the fact that the tenant has committed wilful default and the matter is pending for so many years, I am inclined to grant three months time to vacate and hand over possession on condition of filing undertaking affidavit to that effect within a period of two weeks from today.