Madras High Court
V.S. Hamid Sultan, Rep. By His Power ... vs Abdul Latheef on 7 October, 1999
Equivalent citations: 2000(1)CTC137, (2000)1MLJ364
ORDER
1. This revision is directed against the judgment of the learned Subordinate Judge, Nagapattinam, in R.C.A.No. 19 of 1993 confirming the judgment of the learned Rent Controller, Thiruvarur, in R.C.O.P.No. 14 of 1992. The landlord/petitioner in the R.C.O.P. is the revision petitioner.
2. In the petition filed by the landlord, it is contend that the respondent is the tenant in the residential building. The tenancy was the first of every English calendar month and the same was oral. The monthly rent was only Rs. 80 and the respondent was not regular in payment of rent and he was a chronic defaulter. He has also not paid rent from June, 1989 and had committed wilful default inspite of repeated demands. The conduct of the respondent shows supine indifference and callousness. When the petitioner pressed the respondent to pay the arrears of rent, he had issued a lawyer's notice on 6.1.1992 claiming as though there was only arrears of rent for two months. But the petitioner gave a reply and terminated his tenancy on 29.2.1991 calling upon him to deliver vacant possession by 1.3.1992. The respondent gave a reply contending false allegations. The allegations in the reply notice were denied and the respondent did not carry out any repairs in the building. The alleged repairs were only invention of the tenant for the purpose of his case. Nor was the tenant allowed to do any repairs. The rent up to March, 1992 was Rs.2,720 and therefore, the respondent had to be evicted forthwith. It was further contended that the petitioner's family had increased in number and his son Syed Rahman wanted to live separately from the family and therefore, the building was required for his own occupation of his family member and he was not occupying a residential building of his own. Therefore, the requirement of the petitioner was bona fide.
3. In the counter while denying the said allegations, the respondent contended that the premises was taken on lease for both commercial and residential purpose. The building was not a single unit, but consists of tiled portion divided into three separate units and the respondent was in occupation of the third portion. The lessor had agreed that the lessee shall carry out all the repairs to the premises and that the lessor would reimburse such amounts spent for repairing. He also denied the allegation that he was in the habit of committing default. He occupied the premises in the year 1966 and at that time the rent was Rs. 30 per month and subsequently increased to Rs. 80. When the rent was due for the month of November, 1991, the lessor refused to receive the same with ulterior motive of letting out the premises to some other individuals. Therefore, the rent due for the months November and December, 1991 was sent by Money Oder and the said fact was communicated through lawyer's notice dated 6.1.1992. The Money Order was returned and a reply was sent by the lessor on 21.1.1992 containing false allegations. Therefore, the averment that the lessee was in arrears of rent for the period of 30 months was false. The respondent also sent a reply notice on 25.2.1992. The rent for January, 1992 was also sent by money order but returned by the lessor. Thereafter till the petition was filed, for subsequent period also, the rent was also sent by Money Order, but was refused. Therefore, he was depositing a sum of Rs. 720 towards the rent due from November, 1991 to July, 1992. Therefore, there was no default on his part. The claim for personal occupation was also denied and it was also contended that the landlord have various other buildings. According to the respondent, the lessor was adopting a high handed action only with the object of driving out the lessee from the premises. As the property had been leased out for commercial purpose also, the tenant would be subjected to irreparable hardship if he was to be evicted.
4. The Rent Controller found that the claim for eviction on both the grounds were not sustainable and hence the petition for dismissed. On appeal also the appellate authority agreed with the said findings. Hence the present revision petition.
5. Mr.R. Gandhi, teamed Senior Counsel appearing for the petitioner contends as follows:
(a) The evidence clearly discloses that the landlord's son was married and hence the requirement for separate accommodation was imperative and hence the findings by the Courts below cannot be sustained.
(b) Even according to the pleadings of the tenant himself, rental amount sent by the tenant had been returned. Therefore, the tenant ought to have taken proceedings to deposit the rent in Court and the failure to do so would establish wilful default.
(c) In the pleadings, it has been specifically stated that the rent for January, 1991 was sent by M.O. and the same was returned as refused and that the rent for subsequent months were also sent by M.O. There is absolutely no evidence to prove the said allegation.
(d) The Courts below were carried away by the fact that the landlord did not respond when the tenant had called him to swear before the God in the Mosque and that the lessor failed to respond. Such a reason has no legal basis and hence the finding of the default has to be set aside.
6. Mr. Ananthakrishnan, learned counsel appearing for the respondent, would contend that all the aforementioned submissions have no basis. He would state that the mentioning of the year as 1991 in paragraph 3 of the counter was only typing mistake and the parties however, clearly understood the period of default and at the revisional stage it was not proper for the lessor to try to make a point out of a typographical error. He would also state that it was not open to the lessor to complain any default having himself refused to accept the payment and having returned the money orders. The claim of owner's occupation was also found against the petitioner and as a question of fact that the said findings may not be interfered in the revision.
7. During the hearing I did entertain a feeling that with reference to the controversy relating to the statement made in paragraph 3 of the counter in R.C.O.P., to the effect that the tenant had sent the rent for January, 1991 by Money Order, was refused by the lessor, the revision may have to be remanded to the Rent Controller for ascertaining the correct position. Since no evidence had been filed on the side of the tenant to prove the payment through Money Order. I called upon the counsel for the respondent to explain the same and according to him, mentioning of the year 1991 was only typing mistake and that though the date had been corrected in the original, by oversight in the copies the corrections in the original had not been initiated. Therefore, I thought that the real position has to be analysed by proper evidence. But on a perusal of the entire pleadings and the evidence and the arguments before the Courts below, I am convinced that it is only a typographical error and it is not the case of the tenant that the rents for the period from January, 1991 had been sent by Money Order. The exhibits filed on his side pertain only to the period between November, 1991 to May, 1992 (Exs. R.1 to R.5). A perusal of the judgments of the Courts below also disclose that no such argument by the landlord had been projected before both the Courts below. It is also interesting to note that the petitioner is also guilty of such a mistake as could be seen form paragraph 3 of the petition in as could be seen from paragraph 3 of the petition in R.C.O.P. where he had mentioned that the tenancy was terminated by 29.2.1991. The correct date would be 29.2.1992. Since the mentioning of the year in paragraph 3 as 1991, is obviously a typing mistake, no further enquiry or finding is necessary.
8. The main contentions which are raised before me in the context of wilful default are that, (1)Even though there was no agreement between the parties to adjust rental amount towards repairs which were allegedly earned out at the premises, the attempt on the part of the tenant, in mentioning the same cannot be sustained; and that (2) The tenant instead of depositing the rent as provided under Section 8 of the Act, he was merely satisfied by sending the rent by Money Oder which was returned to him. The failure to comply with Section 8 would itself signify wilful default
9. On the issue of mentioning of the repairs allegedly carried out in the premises, I agree with the learned counsel for the respondent that the tenant had merely stated the fact of having carried out the repair and he had not made any claim at all for adjusting the said amounts towards rental dues. He has further stated that the land-lord agreed to reimburse the expenses incurred for repairs, but he did not comply with the same.
10. On the issue that the failure on the part of the tenant to have complied with the requirement under Section 8 itself would signify wilful default. Mr.R. Gandhi, learned Senior Counsel relies on the judgment of the Supreme Court reported in M. Bhaskar v. J. Venkatarama Naidu, 1997 (I) MLJ. 109 (S.C.). Though in that judgment the Supreme Court had observed that if the tenant finds that the landlord was evading receipt of the rent, the procedure under Section 8 has to be followed, a perusal of the judgment shows that the ratio of the decision was that non compliance of the procedure under Section 8 by the landlord by refusing to name the Bank for making the deposit will not disentitle the landlord to seek eviction for wilful default. I am unable to read any observation in the said judgment to the effect that the only circumstance of the tenant in not taking steps under Section 8 by itself alone would amount to a wilful default In fact, a Division Bench of this Court had to deal with a similar question in the judgment reported in Durga Ammal v. R.T. Mani, 1989 (1) L.W., 155, the Division Bench held that when a landlord refused to receive the rent, it is his fault and that he cannot subsequently say that the tenant ought to have complied with Section 8 and that the non-compliance of the same would amount to wilful default This Judgment has also been followed by another learned single Judge in the judgment reported in Rajalinga Chettiar and 2 others v. Nataraja Mudaliar, 1995 (I) L.W. 456.
11. The judgment reported in Raffudin, S.K. and others v. N. Yeswantha Rao and others, 1997 (2) L.W. 66, cited on behalf of the petitioner deals with a different issue namely, the consequences of dismissal of an application filed by the tenant under Section 8(5) of the Act.
12. In the judgment reported in Mehaboob Huss, A.S. v. Jayaraman, , it is true that the learned single Judge pointed out that the fact that the tenants have not paid the rent and had not also not invoked Section 8 of the Act would amount to wilful default. The said ruling is not to be applied to cases where the tenant pays rent, but the landlord refused to receive the rent as in the present case.
13. The present case would be covered by the observation of the Division Bench in the judgment reported in Durga Ammal v. R.T. Mani, 1989 (I) L.W. 155, and the landlord who refused to receive the rent cannot be heard to complain non compliance of Section 8 of the Act as against the tenant. It is undoubtedly, true that in considering whether a tenant was guilty of wilful or not, the circumstance of non compliance of Section 8 of the Act will also be one of the relevant circumstance, but not the only conclusive circumstance in a case where the landlord refused to receive the rent.
14. The evidence on the side of the landlord is not satisfactory. P.W.1 is only an agent who is not aware of the manner of payment and receipt of the rent between the landlord and the tenant. He would also deny knowledge of landlord having returned the payments which were made through Money Order.
15. Learned Senior Counsel also commented on the conduct of the tenant in having issued on earlier notice and that the same would disclose a motivated action. The reason for having sent a notice dated 6.1.1992 has been explained by the tenant in his counter as resulting from refusal by the landlord to receive the rent.
16. On behalf of the landlord it was also contended that the Courts below were carried away by the fact that the landlord did not respond the tenant calling him to swear before God in the Mosque. It is true that there is a reference to the said averment in the order of the Rent Controller. But that is not the only ground on which the Rent Controller finally arrived at his conclusion. The appellate authority did not give any consideration to the said feature. Therefore, I am unable to hold that the Courts below were in any manner carried away by the said irrelevant circumstance.
17. Therefore, I am unable to find any reason to set aside the concurrent findings of the Courts below in rejecting the allegation of default in payment of rent. Much less, is there any ground to conclude that the default was wilful.
18. On the question of requirement of the premises for the son of the landlord, P.W.1 had admitted in his evidence that apart from the petition premises there was another house at Door No. 46, Thiruvarur Pillai Street. There was also another big house at Kodikkalpalayam, Nadu Veethi, which was large enough for occupation both at the ground floor as well as first floor. Therefore, I do not find any reason to interfere with the concurrent findings by the Courts below on that issue also.
19. In the result, there are no grounds to interfere with in the above revision petition and the same is dismissed. No costs.