Madras High Court
Majestice Leatherware, Rep. By Its ... vs Govinda Chetty on 9 July, 1999
Equivalent citations: 1999(3)CTC199, (1999)3MLJ398
ORDER
1. The tenant in R.C.O.P. No. 2695 of 1993 on the file XII Judge, Court of Small Causes at Madras, is the revision petitioner.
2. The landlord filed an application for eviction on the ground that the tenant has defaulted in paying the rent of Rs.1,500 per month from 1.11.1992 to 30.9.1993. According to landlord, the default is wilful default and therefore liable to be evicted. He also averred that an earlier application was filed for eviction on the ground, of payment of rent from 1.7.1992 to 31.10.1992 and the same is also pending consideration by court.
3. In the counter statement filed by the petitioner, he admitted the rate of rent and he denied the allegation that he neglected to pay the rent from 1.11.1992 to 30.9.1993. According to him, there are no arrears and he has not committed any default in payment of rent.
4. The Rent Controller clubbed both the Rent Control Original Petitions viz, R.C.O.R.Nos. 3083 of 1992 and 2695 of 1993 and passed a common order. Evidence consists of P.W.1, the petitioner and D.W.1 the petitioner herein. Documentary evidence of the petitioner consists of Exs. R.1 to R.8, Rent Controller found that R.C.O.P.No. 3083 of 1992 is liable to be dismissed since the rent was tendered even before the eviction petition was filed in view of the non -acceptance of the same, by the landlord. But, in regard to R.C.O.P.No. 2695 of 1993, the Rent Controller has found that there is wilful default and the allegation of landlord is true. He found that there is no explanation offered by the tenant in depositing 13 months rent in lumpsum and after initiation of the second proceeding, when no reasons for explaining lumpsum payment, it is, ordered, for eviction.
5. Though the tenant filed R.C.A. No: 921 of 1995 on the file of VIII Small Causes Court at Madras. The appellate court also did not think of interfering with the order of the Rent Controller and dismissed the appeal.
6. The concurrent findings of the authority below are assailed in this revision.
7. Heard both sides. The rent is payable every month is an obligation on the part of the tenant, and it is recognised under the Rent Control Act. The Rent Control Act also provided that every month's rent will have to be paid on the due date and at any rate within 15 days on which the rent falls due. If no date is fixed, on or before last day of the succeeding month the rent is payable. Thus there is statutory obligation on the part of the tenant to pay the rent punctually. If he default in payment of rent in due time, he will be a defaulter. It is also declared that mere default is not a wilful default. But, circumstances can be made out to prove that the default committed is wilfal and for the said purpose, this Court in various decisions have laid down certain guidelines. Basing on those guidelines we have to consider whether in this case, the default committed by the tenant can be termed as wilful.
8. The first eviction petition was filed alleging that the petitioners have failed to pay monthly rents from 1.7.1991 to 31.10.1992. The second eviction petition was filed for default in payment of rent from 1.11.1992 to 30.9.1993. The first eviction petition Was dismissed on the ground that the entire arrears was paid before the eviction petition was filed and that in a lumpsum, when the second application was filed, 13 months rent was deposited in December, 1993. From this conduct, it is clear that the tenant was not in the habit of paying the rent on due dates. By making lumpsum payment, monthly, tenancy is sought to be converted into yearly tenancy.
9. Learned Counsel for the petitioner submitted, before the eviction petition was filed no notice was issued. The Rent Control Act does not say that before any eviction petition is filed no notice is required. Only, in cases where the court has to presume the wilful default, a notice is contemplated. In other cases, the court can enter a finding taken into consideration the conduct of the tenant to consider where the default is wilful, no notice is required.
10. It is submitted by the counsel that the landlord wanted to enhance the rent from Rs. 1,500 to Rs. 3,500 and that was a reason why he did not pay the rent. Absolutely, no evidence has been let in is this regard. If the petitioner had refused to receive the rent, there are remedies provided under the Rent Control Act enabling the tenant to send a registered notice and thereafter initiate proceedings under section 8(5) of the Act. For reasons best known to the tenant, he did not think of invoking those provisions. There is also no prohibition for tenant to deposit the entire rent in the earlier proceedings. No attempt was made to sent amount atleast by money order.
11. When the only explanation was that the landlord attempted to enhance the rent, that has been disbelieved by the authorities below. I do not think that while exercising revisional jurisdiction, I should enter a different finding. I need only consider whether the authorities below have committed any irregularity, illegality or impropriety while passing the order.
12. In the decision reported in B. Anraj Pipada v. V. Umayal, 1998 (3) L.W, 159, the learned Judge of this court has said thus:
"The conduct of the tenant in not paying the rent regularly during the pendency of the proceedings wilt amount to wilful default and such subsequent conduct of the tenant can be taken into consideration in deciding The matter. In the light of the above principles, it is clear that the petitioner has committed wilful default not only prior to the filling of the R.C.O.P. but also during the subsistence of the proceedings before the Rent Controller, the Appellate Authority as well as before this Court. "Hence I do not sec any valid reason to differ from the orders of the courts below."
13. A similar view was taken by the another learned Judge of this court in the decision reported in T. Easwara Rao v. N.E. Ansari (deed) and six others, . A similar contention was raised before the learned Judge, in para 6 it has been held thus:
"The submission of the learned counsel for the petitioner is that if a tenant had deposited on the effective date of hearing, the default cannot be construed as wilful, whatever may be the period of default. I find it difficult to accept the said submission. Under the said Act, only to presume wilful default in payment of rent, Explanation to section 10(2)(i) has been introduced. So, if the submission of the learned counsel is accepted it amounts to rewriting the provision of the ACT. Such a presumption as suggested by the teamed counsel cannot be arrived at, merely because after three years if a tenant deposits or pays the rent on the first hearing date without any valid reason. For example if a tenant did not pay any rent inspite or two months notice. Under Explanation to section 10(2)(i) of the Act, then the legal presumption is wilful and the landlord need not further establish the same. Even in this case, if the tenant deposits or pays the rent on the first effective dale of hearing, can it be said, Explanation to section 10(2)(i) of the Act cannot be applied. So, merely because the tenant pays or deposits the arrears of rent on the first hearing date, it cannot be said that the landlord cannot sustain the petition, if otherwise it is established that the tenant had committed wilful default in payment of rent."
14. Both the authorities have concurrently found that the default is wilful taking into consideration of the contract of the tenant. The said finding is not liable to be revised by this Court. Consequently, the revision is dismissed, however, without any order as to costs. C.M.P.No.8149 of 1999 is also dismissed.