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2013 DIGILAW 4199 (MAD)

A. H. Mohammed Zakriah Sait v. Khyrunnisa Bai

2013-12-16

K.KALYANASUNDARAM

body2013
Judgment 1. This civil revision petition is directed against the judgment and decree dated 31.3.2010 passed by the Sub Judge, Udagamandalam, in RCA No. 6 of 2009, confirming the judgment and decree dated 14.7.2009 passed by the Rent Controller cum District Munsif, Udagamandalam, in RCOP No.5 of 2006. 2. The petitioner is the tenant and the respondent is the landlady. The landlady filed an eviction petition in RCOP No. 5 of 2006 before the Rent Controller, Udagamandalam, for eviction, on the ground of ‘wilful default’. 3. The parties, for the sake of convenience, are referred to hereunder according to their litigative status in the RCOP proceedings. 4. The landlady had stated that she is the owner of the petition premises and the respondent agreed to pay Rs.700/- per month. But the respondent was highly irregular in paying the rents and he committed default for the period from 1.4.1999 to 30.6.2001, amounting to Rs.18,900/-. So, the landlady was constrained to issue notice calling upon the tenant to vacate and hand over possession and also for paying the arrears of rents. Though the respondent received the notice, he did not comply with the demand. Hence, the landlady filed an eviction petition in RCOP No. 45 of 2001, before the Rent Controller and only thereafter, the respondent paid the arrears on 8.2.2002. Subsequently also, the respondent committed default from 1.6.2002 to 31.7.2003, amounting to Rs. 9,800/-, for which, the landlady issued a notice and thereafter, he paid the arrears. The further case of the landlady is that the respondent had committed ‘wilful default’ from 1.9.2005 to 31.12.2005, amounting to Rs. 2, 800/- So he must be evicted from the petition premises. The respondent filed his counter, in which he did not dispute the allegations of the landlady with regard to default for the period from 1.4.1992 to 30.6.2001 and subsequent payment of arrears of rent from 1.6.2002 to 31.7.2003. But he contended that the landlady was in the habit of receiving rents once in 15 months to 18 months and therefore, the default cannot be termed as ‘willful default’. 5. Before the Rent Controller, the landlady has examined one Mr. John Mohammed Sait as P.W.1 and marked Exs.A1 to A3. On the side of the respondent/tenant, one witness was examined and Ex.B1 was produced. 6. 5. Before the Rent Controller, the landlady has examined one Mr. John Mohammed Sait as P.W.1 and marked Exs.A1 to A3. On the side of the respondent/tenant, one witness was examined and Ex.B1 was produced. 6. The learned Rent Controller, after considering the evidence, has held that the default committed by the respondent/tenant was willful and ordered eviction. Against that order, the tenant filed an appeal in R.C.A. No. 6 of 2009,for nothing but to be dismissed by the learned Rent Control Appellate Authority, confirming the order of the rent controller. Aggrieved by the orders of both the Courts below, the tenant has filed the present revision. 7. Heard Mr. Raghavachari, learned counsel for the petitioner and Mr.Lenin, learned counsel for the respondent. 8. Learned counsel for the petitioner contended that as on date there is no arrears. The landlady was in the habit of receiving rents in lumpsum; that the tenant was always ready in paying the rent every month, but only due to the reason that the landlady did not demand rent every month, the tenant did not pay the same. The learned counsel further contended that earlier, the landlady issued notice for the default from 1.4.1999 to 30.6.2001 and filed the eviction petition in RCOP No. 45 of 2001. Immediately thereafter, the tenant paid the entire arrears. Likewise, for the period from 1.6.2002 to 31.7.2003, the landlady demanded arrears and the tenant paid the arrears immediately. The tenant had produced Ex.B1 to show that the landlady was receiving rents only in lumpsum and there is not even one receipt to show that the rent was collected for one month. So, the contention of the petitioner is that once if the landlady was in the habit of receiving rents in lumpsum, the non-payment of rent from 1.9.2005 to 31.12.2005 will not amount to willful default. The learned counsel as relied on the judgments of this Court reported in (i) 1996 (2) L.W.525-Abdul Hameed v. M. Sultan Abdul Kader, (ii) 2010 (4) CTC 37 -K. Balaraman v. K. Ponnurangam. 9. Per contra, the learned counsel for the respondent submits that the as per the Tamil Nadu Buildings (Lease and Rent Control), Act, duty is cast upon the tenant to pay the rent every month and there is no necessity for demand of rent by the landlady. 9. Per contra, the learned counsel for the respondent submits that the as per the Tamil Nadu Buildings (Lease and Rent Control), Act, duty is cast upon the tenant to pay the rent every month and there is no necessity for demand of rent by the landlady. The tenant, even pending disposal of the eviction petition, has committed default and paid rent on 31.8.2008 and 12.9.2009, which would amply prove that the tenant has committed ‘willful default’ in payment of rent. 10. Admittedly, the tenant did not pay rent for the period from 1.4.1999 to 30.6.2001 and the arrears rent of Rs.18,900/- was paid after the landlady filed a petition for eviction in RCOP No. 45 of 2001. Further, the tenant had admitted that there was default from 1.6.2002 to 31.7.2003, which was paid only after issuance of notice by the landlady. The eviction petition was filed on 6.1.2006 alleging that the tenant has defaulted in paying monthly rent from 1.9.2005 to 31.12.2009. The same is not disputed by the tenant. Even after filing the eviction petition, the tenant did not pay the rent regularly. He paid the rent of Rs. 23,800/- only on 31.7.2008 and after one year, the tenant paid the rent of Rs.7000/- on 12.6.2009, when both the landlady and the tenant are doing business in adjacent shops. 11. In the above admitted facts, we have to consider the following judgments of this Court. 12. In the judgment reported in 1996(2) L.W.525-Abdul Hameed V. M. Sultan Abdul Kader, this Court has held that if the rent was collected through an agent only periodically and not regularly and the accumulated rent used to be paid only whenever the agent comes to the shop of the petitioner, the default will not amount to ‘willful default’. 13. In the judgment of this Court in K. Balaraman v. K. Ponnurangam, ( 2010 (4) CTC 37 ), the tenant had availed the provision under Section 8 of the Rent Control Act for paying the arrears to the landlady, but the landlady refused to receive the same. In such circumstances, this Court has held that non-payment of rent cannot be termed as ‘deliberate or calculated willful default’. 14. In the case on hand, admittedly, the tenant did not come forward to pay the rent regularly and it is also not his case that the landlady refused to receive the rent. In such circumstances, this Court has held that non-payment of rent cannot be termed as ‘deliberate or calculated willful default’. 14. In the case on hand, admittedly, the tenant did not come forward to pay the rent regularly and it is also not his case that the landlady refused to receive the rent. As per Ex.A3, the tenant agreed to pay the rent regularly, when default was committed even in the year 1993. Ex.B1, would show that the tenant was not in the habit of paying the rent regularly. 15. In the judgment reported in 2000-1-L.W.474 Majestic Leather ware rep. by its Proprietor S.M. Mahboob Basha, Chennai-3.v. Govind Chetty, this Court has held that even pending eviction petition if the tenant has not paid rents regularly, it will amount to ‘willful default’. 16. I would also like to refer to the judgment of the Honourable Apex Court reported in (2001) 10 Supreme Court Cases 641-D. Radhakrishnan and another v. M. Loorduswamy. Paragraph No. 5 of the judgment would run thus: “5………….The only question that arises for our consideration is, whether the findings arrived at by the Rent Controller and affirmed by the appellate authority, could have interfered with by the High Court in exercise of revisional jurisdiction under Section 25 of the Act. Though the power of revision of the High Court under Section 25 cannot be held to be similar to the power of the civil court under Section 115 CPC, but at the same time, the same cannot be held to be conferring appellate power on the High Court. The High Court is only required to examine and satisfy itself as to whether the procedure followed by the forum below is regular or not and whether there has been any illegality in or impropriety of the decisions arrived at.” 17. The same view has been followed by this Court in the judgment reported in 1998-3-L.W.159 – B. Anraj Pipada v. V. Umayal. 18. Unless there is perversity or gross illegality, the question of interfering in revision, under Section 25 of the Act, would not arise. The Rent Controller as well as the rent control appellate authority, on the basis of evidence, has come to the conclusion that the tenant has committed ‘willful default’. 18. Unless there is perversity or gross illegality, the question of interfering in revision, under Section 25 of the Act, would not arise. The Rent Controller as well as the rent control appellate authority, on the basis of evidence, has come to the conclusion that the tenant has committed ‘willful default’. This Court, exercising revisional jurisdiction under Section 25 of the Rent Control Act, is not inclined to set aside the concurrent findings of both the Courts below. 19. In the result, the civil revision petition is dismissed. However, considering the fact that the tenant is running a business in the petition premises for more than 15 years, he is given six months’ time to vacate the premises, subject to the following conditions: (i) the tenant shall file an affidavit of undertaking to vacate the premises on or before 16.6.2014, and the same shall be filed within a period of ten days from the date of receipt of a copy of this order; (ii) the tenant shall pay the monthly rent regularly without any default. If the tenant violates any one of the conditions above, it is open to the landlady to execute the decree passed in the rent control proceedings. No costs. Consequently, connected miscellaneous petition is dismissed.