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2015 DIGILAW 1082 (MAD)

V. Jayakumar v. Sithi Rasheeda Begum

2015-02-23

K.KALYANASUNDARAM

body2015
JUDGMENT : - 1. This civil revision arises out of the order of the Rent Control Appellate authority, (8th Court of Small Causes), Chennai in RCA No.786 of 2010, confirming the order of the Rent Controller (5th Judge, Court of Small Causes), Chennai passed in RCOP No.1747 of 2008, dated 27.09.2010. 2. The respondent/landlady initiated the eviction proceedings against the petitioner in RCOP No.1747 of 2008 under section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 contending that the tenant was inducted on a monthly rent of Rs.2,000/- and he is a chronic defaulter in payment of monthly rents and he was always irregular in the payment of rents and he has failed and neglected to pay rents for the period of 13 months from June 2007 to June 2008 amounting to Rs.26,000/-. 3. The respondent/landlady further averred that she issued a lawyer notice on 10.05.2008 by registered post, but the tenant has neither paid rent nor sent any reply. Hence, the eviction petition. 4. The tenant resisted the application contending that she had paid initially Rs.75,000/- to the original owner namely Mr. G.Mani as advance and subsequently, he paid another sum of Rs.1,10,000/- as additional evidence, that the landlady is a resident of Keelakarai, she was collecting rent through one M.S. Shaik Shamsudeen and he refused to receive the rent for September 2006 and therefore, she sent the rent by Money Order and in the first week of June 2007, the Agent started to demand more rent and when the tenant refused to pay the enhanced rent, the money sent on 14.06.2007 were returned and it is further stated that the Agent told her that they will not receive the rents and therefore, the tenant has tendered the entire arrears of rent of Rs.30,000/- on the first hearing of the eviction petition and therefore, there is no willful default. 5. Before the Rent Controller, the landlady examined PW1 and marked documents Exs.P1 to P6. The tenant examined himself as RW1 and produced Exs.R1 to R10. The original owner Mr. G.Mani was examined as CW1. 6. The Rent Controller, after considering the evidence of both parties, held that the tenant has committed default in the payment of rent and the default is willful, ordered eviction. The appellate authority confirmed the findings of the Rent Controller and dismissed the appeal filed in RCA No.786 of 2010. The original owner Mr. G.Mani was examined as CW1. 6. The Rent Controller, after considering the evidence of both parties, held that the tenant has committed default in the payment of rent and the default is willful, ordered eviction. The appellate authority confirmed the findings of the Rent Controller and dismissed the appeal filed in RCA No.786 of 2010. Challenging the order, the present revision is filed. 7. Mr. K.P. Ashok, learned counsel for the petitioner submitted that the tenant has never committed any willful default in the payment of rent; that the advance amount of Rs.1,85,000/- was lying with the landlady and the advance amount exceeds the alleged arrears of rent and therefore, petition is liable to be dismissed. It is further contended that the tenant was paying rent by cheque to the agent of the landlady and it was refused by the agent for the month of September 2006 and thereafter, the rent was sent by Money Order and the same was received by the agent. Subsequently, the agent came to the petition premises and told that the rents henceforth will not be received and the tenancy has been terminated and thereafter, there was no intimation or letter of any of kind for any one of the tenants, informing about the new agent and thereafter, the tenant could not send the rent from June 2007 onwards. 8. The learned counsel further submitted that on the first hearing date, the tenant has paid the entire arrears of rent and therefore, the findings recorded by the authorities, without considering these aspects are perverse and they are liable to be set aside. 9. On the other hand, Mr. M. Imthias, learned counsel for the respondent/landlady submitted that the tenant has not proved the alleged advance amount of Rs.1,85,000/- and the even after the receipt of the notice, Ex.P5, which was sent by the landlady demanding the tenant to pay the entire arrears of rent and therefore, it is a clear case of willful default as per the explanation to section 10(2)(i) of the Act. 10. 10. The learned counsel further submitted that mere payment of arrears of rent on the first hearing date, would not absolve the willful default committed by the tenant and both the authorities have properly appreciated the material evidences and recorded the finding of fact that the tenant has committed willful default, which does not require interference by this court. 11. In the case at hand, there is no dispute with regard to the jural relationship of the parties and the quantum of rent. Ex.P1 is the notice, dated 06.02.2004 claiming arrears of rent for 10 months, in which the landlady has specifically stated that there is no advance amount lying with her under Ex.P2 reply, dated 17.03.2004, the tenant sent the arrears of rent of Rs.22,000/- and also stated that the advance of Rs.1,85,000/- was paid to her vendor G.Mani. Under Ex.P3, dated 27.03.2004, the landlady acknowledged the receipt of the arrears of rent and informed the tenant to produce proof for the alleged payment of Rs.1,85,000/- as advance, as she has no knowledge of the advance amount. 12. Under Ex.P5 notice, dated 10.05.2008, the landlady called upon the tenant to pay the arrears of rent Rs.20,000/- and Ex.P6 is the proof for delivery of the notice. 13. It is the specific case of the tenant that he had paid Rs.1,85,000/- to the erstwhile landlord G.Mani and the landlady has to adjust the amount towards arrears of rent. During the cross examination of CW1, he deposed that the tenant has paid only Rs.75,000/- as advance and the same was deducted towards arrears to be paid by the tenant. CW1 has denied the receipt of Rs.1,10,000/- as additional advance. 14. Indisputably, the tenant has not produced any documentary evidence to show that he had paid Rs.1,85,000/- to the erstwhile owner and it was lying with the landlady. The Rent Controller, after considering the evidence, held that the landlady has not in the custody of advance amount of Rs.1,85,000/-. 15. It is contended by the landlady that she has sent Ex.P5 notice on 10.05.2008 demanding the tenant to pay arrear of rent of Rs.20,000/-, which was received by the tenant under Ex.P6. However, the tenant has disputed and denied the receipt of notice issued under Ex.P5. Both the authorities referring to Ex.P6 held that the tenant has received the notice under Ex.P5. However, the tenant has disputed and denied the receipt of notice issued under Ex.P5. Both the authorities referring to Ex.P6 held that the tenant has received the notice under Ex.P5. Further, the tenant himself admits in his counter that he has not paid rents from June 2008, since the landlady's agents have not come forward to collect the rents. 16. It is settled law that the tenant has statutory obligation to pay the rents regularly and if the landlord/landlady refused to receive the rent, the tenant has to follow the mandatory procedures contemplated under section 8 of the Act and deposit the rent into the court. The appellate authority relying upon the decisions in 2001 (1) LW 801 [K.S.Pandian vs. G.Rukmani Bai and others], 2002(1) LW 796 [Manickampillai vs. A.Sakuniala and others and the order of this court made in CRP (NPD) No.2883 of 2008, dated 25.07.2013 has observed that the payment of arrears at the first hearing date would not absolve the willful default committed by the tenant. 17. In the light of the above facts, I do not find any perversity or illegality in the orders impugned in this revision. 18. In the result, the revision petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. The tenant is given three months' time to vacate and hand over the possession to the landlady. The tenant is further directed to pay the entire arrears amount to the landlady and also continue to pay the rent regularly till handing over the vacant possession as the time limit fixed by this court.