Madras High Court
Pramila Shrirengaraja vs R. Kannan on 4 January, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 4/1/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(MD)No.2301 of 2008
and
M.P.No.1 of 2008
1. Pramila Shrirengaraja
2. Nagesh
3. Murugan ... Petitioners/ Tenants
Vs
R. Kannan ... Respondent / Landlord
Civil Revision Petition has been filed under Section 25 of the Tamil Nadu
Buildings (Lease & Rent Control) Act 18/60 as amended by Act 23/73 to set aside
the order passed in R.C.A.No.50 of 2005 dated 26.8.2008 by the Principal Sub
Judge (Rent Control Appellate Authority) Madurai, reversing the order dated
16.11.2004 passed in R.C.O.P.No.344 of 1999 by the Principal District Munsif
(Rent Controller), Madurai Town.
!For Petitioners ... Mr D.Malaichamy
^For Respondent ... Mr. V.Nagendran
:ORDER
The tenants are the revision petitioners. R.C.O.P.No.344 of 1999 was filed by the landlord/respondent herein for eviction on the ground of wilful default in the payment of rent by the revision petitioners from October 1998 to September, 1999. According to the respondent/landlord that the rent for the building is Rs.1000/- and the tenants have committed wilful default in the payment rent from October, 1998 to September, 1999 i.e., 11 months and that rent was not paid and hence the petition was filed on the ground of wilful default.
2. The revision petitioners/ tenants filed counter stating that the landlord is in the habit of receiving the rent in lumpsum and even on the earlier occasions he received the rent for a period of 36 months and therefore, there is no question of non-payment of rent by the tenants and they have also paid the rent from October, 1998 to September, 1999 to the landlord and they have not committed any wilful default. The Rent Controller on the basis of evidence dismissed the petition holding that the landlord was in the habit receiving the rent in lumpsum and that was also proved by Ex.R2 receipt issued by the landlord for having received the rent for 36 months. Further, the landlord has not issued any notice to the tenants calling upon the tenants to pay the rent from October,1998 to September,1999 and without issuing any notice, this petition was filed for eviction and therefore as per the Judgement of the Hon'ble Supreme Court reported in A.I.R.2000 Page 1880, in the absence of any notice issued by the landlord, the tenants cannot be held to be a wilful defaulter and therefore gave a finding that there is no wilful default committed by the tenants in the payment of rent and dismissed the application.
3. Aggreived by the same, the landlord filed R.C.A.No.50 of 2005 on the file of the Rent Control Appellate Authority, Madurai and the Rent Control Appellate Authority allowed the appeal holding that the tenants have not proved the payment of rent from October,1998 to September,1999 and the landlord has filed I.A.No.322 of 2000 under 11(4) of the Rent Control Act and during the pendency of that application the tenants have paid a sum of Rs.5000/- on 21.2.2001, Rs.2000/- on 28.11.2001 and Rs.30,000/- on 29.11.2002 and these belated payments would also prove that the tenants have committed wilful default in the payment of rent and ordered eviction. Aggrieved by the same, this revision is filed by the tenants.
4. It is contended by Mr. D.Malaichamy, the learned counsel for the revision petitioners that the burden is on the landlord to prove that the tenants have committed wilful default and the landlord has not discharged the burden and it is accepted by the landlord that he is in the habit of receiving the rent in lumpsum and therefore, the tenants have paid the rent in lumpsum and there is no question of wilful default.
5. On the other hand, the learned counsel for the respondent/landlord submitted that the tenants have not paid the rent from October 1998 to September 1999, the period mentioned in the Rent Control petition and even during the pendency of the rent control proceedings, the tenants have not paid the rent regularly and that is proved by the various payments made by the tenants after filing of 11(4) application in I.A.No. 322 of 2000 before the Rent Controller. Therefore, the learned counsel for the respondent/ landlord submitted that the landlord has proved that the tenants have committed wilful default and the Rent Control Appellate Authority has correctly decided the issue and ordered eviction.
6. I have given anxious consideration to the submissions made by both the counsel.
7. It is admitted by both parties that the rent for the building is Rs.1000/- per month. It is also proved in evidence that earlier to the filing of the application for eviction the landlord was receiving the rent in lumpsum on one or two occasions and on various occasions the tenants were paying the rent every month. Exs.A1 and A2 are the receipts which would prove that the rents were paid every month by the tenants. Ex.R2 is the receipt to prove that the rent was paid for 36 months and this was taken advantage of by the learned counsel for the revision petitioners to contend that the landlord is in the habit of receiving the rent in lumpsum.
8. According to me, even assuming that the landlord was in the habit of receiving the rent in lumpsum in the past, the question to be decided in this case is whether the tenants have paid the rent from October 1998 to September 1999 and whether the tenants have committed wilful default in the payment of rent.
9. It was contended by Mr.D.Malaichamy, the learned counsel for the revision petitioners that the burden is on the landlord to prove that the tenants have committed wilful default in the payment of rent and that has not been discharged by the landlord by proving that the tenants have committed wilful default in the payment of rent. According to me, as per the provisions of Tamil Nadu Buildings (Lease & Rent Control) Act 1960, the burden is on the tenant to prove that he has paid the rent. Under Section 8 of the Act, the landlord is expected to give receipt for having received the rent and if the landlord refused to issue receipt, the tenant is entitled to invoke the provisions under Section 8(2) of the Act.
10. Therefore, it is seen from the provisions under Section 8 of the Act, a duty is cast upon the landlord to issue receipt for having received the rent and when the landlord refuses to issue the receipt, the remedy is available to tenant under the Act to proceed against the landlord. Hence, it cannot be contended by the tenants that the tenants have paid the rent and the landlord has not issued the receipt. Further, in this case, having regard to Exs.A1, A2 and R2 and it cannot be contended by the tenants that the landlord refused to issue the receipt. Ex.R2 is the receipt issued by the landlord for having received the rent for 36 months. This would show that the landlord is issuing the receipt for the rent received by him and if really the tenants have paid the rent from October 1998 to September 1999 as contended by the tenants, the landlord would have issued the receipt and the tenants also would have insisted upon the receipts issued by the landlord. Therefore, in the absence of any receipt produced by the tenants for having paid the rent from October 1998 to September 1999, it can be held that the tenants have not paid the rent from October 1998 to September 1999.
11. The next question is whether the tenants have committed wilful default in the payment of rent from October, 1998 to September 1999. In this case, though it is stated by the tenants in the counter that they have paid the rent from October 1998 to September 1999, they have not produced any proof for that. I have already held that the tenants have not paid the rent from October 1998 to September 1999 for a period of 11 months. Even the Rent Controller did not give any finding that the rent from October 1998 to September 1999 was paid. The Rent Controller has only held that there was no wilful default in the payment of rent and the landlord has not proved that. There is no finding given by the Rent Controller that the rent was paid from October 1998 to September 1999. Further, even during the pendency of the rent control proceedings, the tenants have not paid the rent regularly and it is seen from the Judgement of both the lower Courts that the rent was paid in lumpsum on various periods and the rent for 30 months was not paid and it was paid in the year 2002 in one lumpsum. This conduct on the part of the tenants in not paying the rent for 30 months would only prove that the tenants have committed the wilful default and that there cannot be any other presumption. Therefore, the fact that the tenants have not proved the payment of rent from October 1998 to September 1999 and the fact that the tenants were paying the rent during the pendency of the proceedings irregularly and paying the rent for 30 months in one lumpsum will only lead to the presumption that the tenants were recalcitrant in paying the rent and their conduct amounts to supine indifference and they have committed wilful default in payment of rent. In the Judgement of the Hon'ble Supreme Court reported in A.I.R.2000 Page 1880, it was held that without issuing notice to the tenants it cannot be presumed that the tenants have committed wilful default. In this case, it is proved that the tenants have not paid the rent for the periods mentioned in the petition and the tenants have also paid the rent only in lumpsum and during the pendency of the suit the tenants were not paying the rent regularly. Therefore, the decision referred to above cannot support the case of the tenants.
12. Hence, in my opinion, the Rent Control Appellate Authority has correctly held that the tenants have committed wilful default in the payment of rent and ordered eviction and I do not find any reasons to interefere with the order of the Rent Control Appellate Authority.
13. Therefore, there is no merit in the revision and the revision is dismissed. Time for vacating the premises is six months from the date of receipt of a copy of this order on condition of the tenants filing an undertaking affidavit within 15 days from the date of receipt of a copy of this order undertaking to vacate and hand over possession of the premises to the landlord before the expiry of six months from the date of receipt of a copy of this order.
With the above direction, the Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2008 is closed.
kr.
To
1. The Principal District Munsif, Madurai.
2. The Principal Subordinate Judge, Madurai.